Maria Tereza Sadek 1
Universidade de São Paulo
I. The need for Judicial Reform
The Justice System in Brazil is composed by 3 main institutions: Judiciary, Public Prosecution and Police. Although there is a widespread disapproval of the justice system as a whole, it is important to point out that there are important differences among the 3 institutions. The Police first, and the Judiciary, second, appear as responsible for the crisis. The population blames the police for the violence, and the judiciary for its slowness and for what seems to be its partiality in the judgments. The police are much more identified with violence and abuses than with protection or enforcement of the law. The Judiciary, in turn, seems to be very distant, cloistered in its castle, removed from real life. The Public Prosecution was until recently poor understood or confused with the judiciary or the executive. This institution has changed its image since 1988. Indeed, the new Constitution gave to this institution a new role, connected to the guarantees and effectiveness of individual and collectives rights.
II. Diagnosis
The Brazilian Judiciary has two main roles: 1) political and, 2) producer of public services. In both areas the crisis has increased, provoking general dissatisfaction.
On 1), the Political arena, the 1988 Constitution produced a specific presidentialism and a peculiar model of separation of the powers. Although the executive had lost sources of power, it has the right to initiate laws. This is a constant point of confrontation between the executive and the legislature. The legislature, in turn, strengthened its power but not its responsibility. The Congress has not received institutional incentives to cooperate with the executive. On the contrary, tension is the rule. In this situation, the judiciary power is called-in to arbitrate the conflicts. Thus, since the conflict is exacerbated by the institutional arrangements themselves, the judicial power works more as a political institution than as a constitutional Court.
By broadening the legislative powers of control and inspection and giving the power to amend any bill from the executive and, at the same time, maintaining the executive's right to legislate by means of provisional decrees, the Constitution placed on the judiciary the onus (responsibility) of controlling and mediating the conflict between the two powers elected by popular vote.
In addition, the new Constitution increased the possibilities for review of alleged unconstitutionality. During the previous military regime, cases of representation for unconstitutionality were an exclusive concern of the Attorney General of the Republic. By contrast, now under the current Basic Law, there are nine possible initiators: the President of the Republic; the Chair of the two legislative houses, the Chair of the states legislature; State Governors; the Attorney-General of the Republic; the Federal Council of the Brazilian Bar Association; a political party represented in the National Congress; and a trade union, confederation or national professional association. Moreover, as there are extensive regulations in the Constitution, in effect there is no question that can escape from the judicial deliberations. Given this institutional format, the Supreme Court ruled in over 40,000 cases in 1997 alone, and this year was not exceptional.
As a consequence, the judiciary's institutional role places it in the center of the political arena and obliges it to decide on practically every question, whether political, economical or social. As the country has lived important changes, the Judiciary has been converted into a political institution, to which all groups opposed to reforms go, seeking to block actions with which they disagree.
2) the Judicial system as a producer of services. In this second aspect of its role the causes of the crisis have mainly to do with the Judiciary itself and with the law. Here it is not necessary to understand precisely are the main causes of the conflict, but rather to highlight the fact that the conflict is very high and has increased Even so, statistics show that only 33% of all men or women involved in conflicts went to a court in order to solve their problems. In spite of the small percentage of people who look for the help of the judicial system, the numbers of cases considered and judged in the ordinary courts is very high in absolute terms.
The management of the crisis also affects criminal justice and the law enforcement system, which have been extremely inefficient in effectively prosecuting and punishing those who commit a crime. Consequently, judicial proceedings are slow and sometimes otiose. A joke in the criminal courts is that of a woman who filed a court case to obtain authorization to have an abortion because she was raped: when the court granted the request, her son was already 10 years old. A lawsuit in São Paulo, for example, takes on average five years to be judged.
The insufficient number of judges is usually pointed out as one of the most important factors in explaining the slowness of the judiciary. Brazil has only one judge for every 31,555 inhabitants much lower than in developed countries (Germany 1:3,433 inhabitants; in Italy 1:7,692; in France, 1: 7,142). On the other hand, in Brazil there are many more posts than judges. It has been difficult to fill vacancies. The percentage of vacancies is high, with a national average of 26%, reaching over 50% in some states. In part this reflects difficulties of recruitment. Entry into the career depends on a public examination, for which all graduates in law are eligible. The number of successful candidates has been very low.
Besides the problems of the laws, there is the problem of over-formalities (red tape), retarding the law's task.. While the judicial system requires that a trial be held within a set period of time from the date of the crime, due to the backlog, old cases frequently are dismissed. This encourages corrupt judges to delay certain cases on purpose, so that they can be dismissed. Lawyers often drag out cases as long as possible in the hope that an appeal court might render a favorable opinion and because they are paid according to the amount of time that they spend on a case.
To the slowness of the bureaucratic structure, the deficiencies of the member of the legal profession and the low qualifications of the graduates, one must add what some call a crisis of mentality. Indeed, there is an excessive corporative spirit, insensitive to changes and opposed to external controls. Another group of problems refers to the legislative sphere and its ritual. It includes a whole range of concerns, from the stability of the judicial order to procedural formalities. The chaos of the judiciary is also aggravated by the number of provisional decrees which make existing norms precarious, further complicating the judiciary's task.
Based on recent data, it is possible to say that approximately 85 percent of prisoners cannot afford a lawyer. In such cases, the court must provide one at public expense. They are not so well prepared as the private is. It means that the poor have no effective defense and consequently little chance to be finding out not guilty. In contrast, rich and influential people have the benefits of good lawyers and those of the system itself. During the old Republic (1889-1930) there was a saying that summarized both the political and the cultural systems in Brazil: "To a friend everything, to an enemy the law." The years have gone by, the country has changed from an agrarian to an urban population, the state has consolidated its power, the political regime has changed many times, but apparently the law issue has remained the same. The law and the punishment implied are not to be respected. Application of the law is not universal: it is for the poor, not for the rich or the powerful. This widespread feeling has increased in the past years as a result of all the emerging acts of corruption that have become public because of the democratization of the country. Indeed, the scandals involving the political elite have appeared every day. Despite the gravity of the situation, none of the politicians were put in jail.
Despite the promises to curb corruption and to punish the guilty, the process has been very slow, and so far as the public is concerned, it appears that impunity is the rule. According to the popular understanding the fragility of the justice does not refer only to the political elite, when public interest is at stake. Its lack of agility also becomes evident when the accused is a powerful person or a rich one. In those cases the culprit always has means to escape the penalties. Indeed, white-collar criminals have little fear of effective punishment.
In Brazil the legal process is predicated upon the assumption of innocence until proved guilty. If a person is found guilty by a judge, he or she can appeal to a higher court in the hope that it will change the previous decision. All this can last years -- sometimes 10 years or more. The richer or the more influential one is, the more one may use the guarantees provided by the law, and consequently postpone a final judicial sentence. Thus, the system ends up creating serious inequality among the classes
The Police
The police have an important role in the judicial criminal system. It is they who are supposed to investigate the crime, and it is their hands whether or not a crime moves to trail.
Police forces fall primarily under the control of the states. State police are divided into 2 forces: the civil police, who have an investigative role, and the uniformed police, known officially as the "military police", who are responsible for maintaining public order. State police forces (both civil and uniformed police) have committed serious abuses, as extra judicial killings, torture of suspects under interrogation, arbitrary detention of persons, and conduction of illegal searches. Despite the fact that law prohibits arbitrary arrest and detention, police continue at times to detain persons arbitrarily. The poor are the principal victims of this kind of violence.
The separate system of uniformed police tribunals contributes to a climate of impunity for police officers involved in extra judicial killings or abuse of prisoners. Special police courts have jurisdiction over state uniformed police (except when charged with intentional homicide). The record of these courts shows that conviction is the exception rather than the rule.
Inadequate training, together with low salaries and poor working conditions, results in a inefficient law enforcement system that is vulnerable to corruption. Crime prevention is inadequate, and the criminal court system is unable to punish those individuals who are prosecuted, because most criminal cases depend upon preliminary police investigation
III- Reform
As we have seen, there is a large number of symptoms pointing towards the imperative for reform.: widespread public distrust; the lack of agility of the system; the unsuitability of old laws, the abuses committed by the police. However, despite the consensus about the need to improve judicial performance, very little has been done. A reform capable of increasing judicial efficiency is now in the political agenda.
Law projects reforming the Judiciary and creating the "sumula vinculante" (stare decisis or binding decisions), the external control of the judiciary; the suppression of the military justice; the redefinition of the competence of the labor justice have been under discussion for many years in Congress, without raising much support. More recently, the Brazilian Bar Association and the National Association of Judges have started to work on proposals to reform the Judiciary. Little is yet known about what they intend.
Besides the reform of Judiciary it has become clear that there is an urgent need to reduce violence among and against the poor, to train police officials in human rights practices, and to combat all kind of discriminations.
I would like to conclude with some comments about Public Prosecutions. We are currently carrying out a research project sponsored by Ford Foundation that seeks to evaluate the new identity of the Public Prosecution service, and its connection with the effectiveness of the rights implied in the notion of citizenship. According to the new Constitution, Article 127 states that "The Public Prosecution is a permanent institution, essential to the jurisdictional function of the State, and it is its duty to defend the juridical order, the democratic regime and the inalienable social and individual interests." This means that besides the function to initiate public criminal prosecution, under the terms of the law -like others prosecutors in the world- there are functions that have changed the identity of the institution. Since 1988 it is common to find public prosecutors conducting investigations and public civil suit to protect public and social property, the environment and other diffuse and collective interests.
On the basis of three case studies in São Paulo city, where the public prosecutors have been investigating corruption in the legislative house; João Pessoa where water rights are in dispute, and . Belem, where the Public Prosecutor there has chosen as a priority to bring justice to the poor, it has become evident that public prosecutors are becoming political actors, protecting public rights. This is a subject that we should all explore further, especially in a poor country such as Brazil, where so many rights exist within the law, but are rarely respected.
Dr. Enrique Díaz-Aranda
Universidad Nacional Autónoma de México
Foundations and policy orientation of the criminal justice system
Criminal law is the most repressive legal instrument available to the State to react to conduct considered delinquent. Through it, in a Social-Democratic State, said punitive potential obeys a criminal policy whose basic foundations and principles I will lay out in the following.
Liberty, after life, is the most important legally protected good available to the individual in a society, for which there exists special protection afforded it through its recognition as an individual guarantee in the Constitution. This means that a citizen's liberty only should be restricted or suppressed by an act of authority duly founded and motivated.
The foundation by which to deprive a citizen of his or her liberty is found in diverse judicial ordinances, primarily from the Constitution, but also from secondary ones, such as civil, administrative and criminal law. So, for example, by means of an administrative arrest one can deprive liberty to one who has committed an administrative crime, for example, public urination. However, in cases like the preceding, deprivation of liberty does not exceed a couple of days, only a grave act could justify a prolonged deprivation of liberty, such an act can only be the commission of a crime.
The commission of a crime or the accusation of a citizen of a crime implies that the state authority has sufficiently investigated in order to demonstrate the suspect's responsibility. The preponderance of the evidence (onus probandi) falls on the competent organs of the State, who supported by a completed investigation and the proof obtained, can duly give motive as to why the detention was justified. To the law also corresponds the duty of regulating which is the competent organ, how the investigation is to be carried out, what degree of proof is required to motivate said act of authority, how to develop procedure, etc.
Up until now I have referred to the detention of a citizen, we will now concentrate on the cause that would sufficiently motivate this procedure, the crime.
Ordered communal life is sustained by the interrelation of its members, who found their expectations of personal development in material or abstract finalities for whose attainment certain goods are indispensable. It is from there that the State, in its function as vigilante of ordered communal life, guarantees the protection of these interests through judicial rules and elevates them to the level of legally protected goods. However, not all legal goods have the same value, only some of them are of vital importance: life, physical integrity, sexual liberty, and patrimony. These are fundamental legal goods and are protected through distinct rules.
So, for example, patrimony is a good that is guaranteed through civil, administrative and even criminal law. It is such that if two individuals create a contract of sale and the seller delivers the good, but the buyer does not pay the price, this non-compliance supposes an injury to the patrimony of the seller. The seller should then count on the judicial protection necessary in order to turn to the competent organs of the State and repair the damage to his or her patrimony. Nonetheless, there exist affronts to the legally protected good whose gravity is greater and, as such, require prevention, and in such cases, are sanctioned through the threat of imprisonment.
In countries with a of roman-canonic-germanic tradition, it corresponds to the legislature to determine which are the fundamental legal goods for an ordered life in society (the principle of legal good) and to identify that conduct that gravely threatens these goods (the principle of fragmentation). Said conduct is described linguistically in crime types which establish the punishments to be imposed on those who commit them (the principle of legality), which translates into legal security for the government.
By itself, although the non-compliance of a contract supposes an affront to patrimony, the State's response should be limited to the employment of Civil Law to recover its integrity and only should make use of Criminal Law when the affront to patrimony is grave (the principle of subsidarity. But gravity is not only measured as a function of the affront to the good but also attending to the gravity of the conduct. Although the affront to the public good is greater for the non-compliance of a $500 contract than the theft of car headlights, nevertheless, the conduct of not complying with a contract is not as grave as that of theft, and as such, the former supposes a reaction with civil sanctions whereas in the latter with the sanction of imprisonment. Of course, if the non-compliance of the contract was plotted by the offender in order to obtain illegal gains through fraud, then, the injury to patrimony together with the criminal intent to defraud the victim justifies the intervention of Criminal Law and the imposition of a prison penalty.
The determination of prohibited conduct as crime types and the sanctions to be imposed does not only obey the principle of legality nullen crimen, nulla poena sine lege penale, but also warns the citizenry to abstain from commission of that conduct considered delinquent, under the threat of being sanctioned with deprivation of their liberty, known as the principle of negative general deterrence.
It is important to point out that the efficiency of this deterrence not only radiates from the existence of criminal laws that describe prohibited conduct and establish punishments, but also and, in greater part, from the effective application of these laws, implying the effective persecution and sanction of crimes by the competent organs of the State. In other words, when the citizen is conscious of the fact that in the society in which he or she lives, "he who does the crime, does the time", he or she avoids commission of crime due to the fear of prosecution, trial and sanction.
On the other hand, the punishment to be imposed not only adheres to the principle of legality, but also must be adhere to the principle of proportionality, that implies that the punishment to be imposed should be equivalent or proportional to the injury to the legally protected good. To take an example from literature, in the novel "Les Miserables" by Victor Hugo, the punishment of life imprisonment was not proportional to the act of stealing a loaf of bread.
In addition, the punishment should serve some end. In antiquity, the end was retribution, whose motto "an eye for an eye, a tooth for a tooth" has remained since the Code of Hammurabi. Today, we intend punishment to serve as general and specific negative deterrence.
General negative deterrence I have already referred to as the dissuasion of the individual to commit crime for fear of the imposition of a penal sanction. On the other hand, specific deterrence has as its end to avoid the recurrence of crime, or recidivism, in effect it intends to re-socialize the delinquent through work and education during the time of his reclusion in the penitentiary. This process of inoculation implies a new opportunity to whom had committed a crime that, once completed his punishment, said offender could reintegrate in society and behave according to the rules vigilant in it.
The criminal policy orientation of each State can be established attending to the formal or real vigilance of the principles previously outlined. Formal vigilance is understood as the existence of legal rules in which either expressly or implicitly these principles are recognized and its real vigilance is proven by the actions of the state organs tending to its effective application.
As I anticipated in the beginning of this talk, in a Social Democratic Legal State all of these principles have real and formal vigilance, to the contrary we find ourselves before an Authoritarian State. Between the two extremes are those in route to be like the former, or to the contrary, like the latter. If this is so, then, one should ask, to which class the criminal policy and criminal law in Mexico belong? I offer the answer in continuation.
Reform and orientation of Mexican Criminal Law
I will, in continuation, make reference to some data that illustrates the orientation of Criminal Law in Mexico.
The Mexican Constitution of 1917 outlined the criminal process in two forms: the body of the crime and probable responsibility (arts. 16 and 19). In effect the Public Ministry, dependant on the executive branch, is the organ charged with carrying out all investigation necessary to authorize said forms and, once proven, to solicit from the judge the arrest warrant for the one presumed responsible for the commission of the crime. Once the Public Ministry apprehends or detains the suspect, it has 48 hours to present him or her before the judge. This interval is the same in those cases in which the suspect was detained while committing the crime. This stage of the criminal procedure is known as Pre-trial Investigation.
Once the judge has been presented with the suspect, he or she is given a interval of 72 hours in which to determine the legal status of the suspect. The judge can issue an act of detention, of conditional release pending trial, or dismissal due to lack of evidence. In the first two cases, a criminal case is opened that culminates, in the first instance, in sentencing.
What has been developed up until now, supposes that the deprivation of liberty of the governed can only proceed through a duly founded and motivated authoritative act, following what is outlined in arts. 16 and 19 in the Constitution.
Nevertheless, there exist contradictory precepts in the spirit of the Constitution. For example, in the Criminal Code of 1931, still in force today with multiple reforms, the intention to commit a crime is presumed, excepting proof to the contrary (art. 9 of the Criminal Code). It presumes intent in the commission of a crime and leaves to the defendant the burden of onus probandi, that is that the suspect needed to prove that the act had been committed without criminal intention, being committed, for example, through negligence or through error. But not all proof was considered valid and the same article 9 established that this presumption would not be eliminated, even if the suspect demonstrated, for example, "I. that he did not intend offense to said person, if he had the intention of causing harm in general...III. that he believed that that the law was unjust or it was morally permissible to violate it...IV. that he believed that the end that motivated the crime was legitimate...VI. that he acted with the consent of the victim...".
The presumption previously described and the inverse of the burden of proof against the offender are characteristics of inquisitorial procedure and contrary to the Rule of Law. In procedure following the Rule of Law it is necessary to suppress said presumption and in equal form reconstruct all of the Criminal Code in order to make it in accordance to the principles of the Rule of Law. With this orientation, new projects were proposed for the Criminal Code in 1958, 1963 and the most representative, in 1980. Although this last project was not converted into active law, it was the base of the reform of the 13th. of January, 1984, with which was abolished the presumption of criminal intent and with which were reformed diverse precepts of the Criminal Code.
The previous reform constituted a significant sign of a criminal policy oriented toward achieving a Social-Democratic Legal State in Mexico. This tendency was confirmed with the Federal Law for the Prevention and Sanction of Torture of the 27th. of December, 1991 and the reform of article 20 of the Constitution of the 3rd. of September, 1993 which provided the base for a more humanitarian criminal procedure.
On the same vein, institutions such as the National Commission of Human Rights were created, that established itself as Ombudsman or defender of the Rights of the People.
Returning to criminal procedure, let's remember that this was founded in two procedural forms: the body of the crime and probable responsibility. Nevertheless, there did not exist unanimous criteria about the content of these forms that created legal uncertainty over when the detention of a citizen was duly founded and motivated. So, the Mexican criminal legislative considered it necessary to reform articles 16 and 19 of the Constitution and establish at the level of the Criminal Procedural Code which were the elements of said forms, although it substituted the term "body of the crime" with the term "crime type elements". So, with the reform of the 10th. of January, 1994, the Public Ministry only could solicit the arrest warrant from a judge when all of the elements of the crime type had been accredited, that is: 1) the existence of an act or omission and the injury or placing in danger of the legal good; 2) the form of intervention of the suspects; 3) the intent or guilt; 4) the other elements required for the particular type. In addition, probable responsibility should also be accredited, which meant the recording of the absence of some other cause of justification or cause of exclusion of culpability.
All of the preceding exhibited until now shows a state criminal policy in route towards achieving a Social-Democratic Legal State. Nevertheless, there exist other facts contrary to this aspiration and, the worse news, this contrary tendency has become clear with the recent reform of the Constitution of the 8th. of March, 1999, which I will deal with in continuation.
As we have seen the end of punishment is re-socialization, it is stated in article 18 of the Constitution which points out that the penitentiary system should be organized around foundations of work, self-capacitation and education as the means for the social re-adaptation of the delinquent. According to article 25 of the Criminal Code of 1931, the minimum prison sentence was 3 days and the maximum 30 years. Later this increased to 40 years and with the reform of the 3rd. of January, 1989 it can be up to 50 years. Today there are proposals to elevate the maximum sentence to 60 years. One should take into account that in Mexico the age at which one is held criminally liable is 18, meaning that those on whom the maximum sentence is imposed, at completion of the sentence would be senior citizens. Could this person reintegrate himself into a society from whose nucleus and evolution he had been removed for so long? If Mexican prisons are overcrowded and hardly implement capacitation programs in employment and education, can we say that they are complying with the principle of specific deterrence consecrated in the Constitution?
So, for example, kidnapping is sanctioned with a maximum penalty of 20 years imprisonment but actually the penalty can be up to 40 years in prison. Said immoderate and frequent increases of penalties also break with the principle of proportionality, since while second degree murder carries a sanction of up to 20 years in prison, kidnapping doubles this penalty. This is also a manifestation of a lack of legislative technique in criminal legal reform, since an injury to the legal good of liberty should not be more heavily sanctioned than deprivation of life.
The argument most employed by the Executive Brach and assumed by the Legislature for the continual increase of penalties in our criminal laws is their necessity in the efficient battle against crime. Unfortunately, the origin of the increase in crime in Mexico is due to the lack of duly capacitated police to fulfill their function of vigilance, investigation and persecution of crime and the absence of real action to eradicate corruption, including the lack of adequate remuneration and incentives for public servants that intervene in the battle against crime. How can we expect that the police on the street not to become corrupt when we do not provide them the necessary resources in order to maintain their families, much less to fulfill their function?
To add to the preceding, a criminal policy truly on the road towards winning the battle against crime cannot be focused only on the effective persecution of delinquents. It must also in large part be focused towards methods of prevention like educational campaigns aimed at children and adolescents and the use of the mass media to create a public conscience to deter crime commission. However, all this is only possible when we attend to the basic economic necessities of the population. How can we expect a rural farmer to continue growing corn when the income generated by this activity often does not provide enough to eat? How can we reproach him if he prefers to plant opium and not corn? In a country where the rates of unemployment are so high, how can we expect that all of the unemployed whose access to public welfare are closed off, not opt to commit crime?
Many of the political discourses in which these problems are recognized, are eloquent in their promises, nevertheless the actions undertaken reduce only to continual legal reform.
A good example of all of the above can be seen in the recent reform of articles 16 and 19 of the Constitution. Remember that after the reform of 1993-1994 to said articles of the Constitution the Public Ministry needed to prove all of the elements of crime type and probable responsibility in order to obtain an arrest warrant from a judge. This guaranteed to the maximum that the act of authority to deprive a citizen of his or her liberty would be duly founded and motivated.
But, in the daily practice the Public Ministries could not duly integrate said investigation and in consequence, the judge denied arrest warrants. Faced with this situation, the executive as well as the legislative branches has considered that the best way to combat crime is to reduce the "excessive" burden of proof of the Public Ministry during the Pretrial Investigation. So, said Public Ministry from the 8th. of March, 1999 only must demonstrate the body of the crime in order to obtain an arrest warrant. By body of the crime is meant the objective elements of the crime type, in other words, those elements that are sensorially perceived. For example, in theft, the fact of taking a movable object is an objective element, from there the Public Ministry needs only to demonstrate that someone has such a movable object on their person in order to solicit a judge for an arrest warrant. It is still not clear, and this should be the objective of another reform to the Criminal Procedural Code, whether it should be demonstrated in addition that this object belongs to a third party. If not, then it would be contrary to all logic if the Public Ministry could detain me arguing that I have taken an object by the simple fact of getting in my car, turning on the motor and driving to work. It is clear that an authoritative act such as this can only be sufficiently motivated when the car in question belonged to a third party!
What is certain is that the Public Ministry would not then need to investigate if in taking my coat off the coat rack in a restaurant, I had done so believing it to be mine, although I could demonstrate that my coat was in the same place with similar characteristics. Now, with the accreditation of the body of the crime, that is the objective elements of the criminal type, it could obtain a warrant for my apprehension from a judge.
The gravest element lies in the same statistics offered in the report of the Commissions of the Senators Chambers in order to proceed with the referred reforms of March 1999. Analyzing data from 1996, in the Federal District, there were 23,282 persons arraigned before a judge to stand trial, which has a minimum duration of four months, at the end of which only 3.8% were convicted and sentenced. Said in other words, for every 23 persons arrested, arraigned and brought to trial, only 1 was found guilty!
As we have seen, according to the Rule of Law each person is presumed innocent until otherwise proven, such so, that if the state is incapable of demonstrating guilt, one is considered innocent.
The preceding statistic would be sufficient to question the performance of the Public Ministry in its job of investigating crimes as well as its job of detaining probable suspects. These were the results with the existence of full legal guarantees that since the reform of 1994 had restricted to the maximum the ease with which the Public Ministry could solicit and obtain a arrest warrant from a judge. What can we expect now that with minimal proof, one can solicit an arrest warrant from a judge and legally detain any citizen?
The above indicates that today, contrary to the political discourse of the Mexican authorities, the criminal policy that guides the criminal reform in Mexico is directed toward making up for the deficient performance of the state aparati against delinquency, through the restriction of civil guarantees. If the Public Ministry can deprive citizens of their liberty with minimal proof, if the penal sanctions are disproportionate in relation to the legally protected good, if the end of said penalties is removed from the re-socialization of the individual, if the impunity of the real delinquents prevails and if we indiscriminately use Criminal Law to solve problems that could be solved through less harmful means, then the conclusion is that at the doorstep of the third millennium the Mexican State finds itself on the fast track to an authoritarian State.
Rapporteur: Paula Winch (ILAS)
The two major issues raised in the discussion were:
1) To what extent is the law (reforms) significant with or without enforcement?
2) What is the significance of Brazil's public ministry model?
The role (and significance) of the law
What is the relationship between law and "reality"? Can the law change reality? It was suggested that the Brazilian office of public ministry is in a position to change reality through the law. It was also argued that the law cannot change reality, that this can only be done through other avenues in society.
There needs to be an institutional presence that ensures that the law gets carried into action. Otherwise the law's implementation and enforcement will be inhibited; regulatory mechanisms are therefore necessary.
Incentives are needed for the political system to follow through with reforms. What are the incentives? Are the reforms even significant?
Brazil's public ministry model
Brazil's public ministry "model" is unique in Latin America. How was it successfully implemented? It is worrisome that the ministry handles both sides in many cases - such as the prosecution of the police (ie. the ministry also represents the defendants.) Also, torture grievances must be taken to the same institution responsible for one's torture.
The public prosecutors are idealized. They are not immune from corruption or the system's other injustices. The "stardom" attached to the public prosecutors' identity (and a lack of social control) has been a problem. Due to the level of autonomy they have been given (they are not subordinate to executive power), they have the opportunity to change the system. They have the opportunity to produce effects that could change reality.
The relationship between the public ministry and the judicial system is complicated. The nature of the relationships need to be changed, not the laws. Actions must be taken that address the root of the issues that lie beyond the law: the corruption for which no one is held accountable.
Some additional specific concerns included:
In the Mexican judicial system, the perception is that one is guilty until proven innocent. In the Brazilian system it is the opposite: innocent until proven guilty. How does this affect social consciousness?
How do the judicial systems maintain lawyer's standards of professionalism?
Public defenders have a low salary and (therefore) lack the incentives to defend the poor effectively.
Women are largely accountable, however they suffer from impunity due to the lack of implementation of the law and their rights.
1Edited by Peter Ward from an English text provided by Dr Sadek.
2 Dr. Díaz-Aranda’s presentation was given in Spanish. This summary was translated by Corinne Davis. For the original Spanish version, please contact Dr. Díaz-Aranda.