PRESENT AND FUTURE OF THE MINISTER PUBLIC IN MEXICO*
Original Text (Spanish) PDF
I. Introduction. II. The Minister Public in the Constitution of 1917. III. The debates about the Minister Public in Mexico. IV. Evolution of the Minister Public in the Mexican legislation. The reforms of 1991 to the criminal procedure codes. V. Constitutional reforms of September 1993. VI. Constitutional modifications of December 1994. VII. New reforms of 1998, 1999 and 2000. VIII. Future of the Minister Public. Substantial reforms.
1. In this brief panoramic approach we do not attempt to analyze the history of the Minister Public in Mexico, which has already been studied by other authors.1 It is enough to mention that since the first constitutional documents of our country, such as the Constitutional Act for the Freedom of the Mexican America (subscribed in Apatzingán in 1814) and the Federal Constitution of the United States of Mexico of 1824, as well as the seven Constitutional Acts of 1836 and the Organic Bases of 1843, and the projects of 1842, the Spanish tradition of incorporating the prosecutors to the judicial bodies remained, with certain attempts to create prosecutors or fiscal promoters as defenders of the public finance and as bodies of the accusation in the criminal process, without establishing a real Unitarian and hierarchical organism.
2. Actually, the institution began to take shape in the Federal Charter of February 5, 1857, whose article 91, which was not subject to discussion in the Constituent Congress, determined that the Supreme Court of Justice would be composed by eleven Proprietary Ministers, four supernumeraries, and a general prosecutor and proxy. All of them were to be elected in an indirect way on the first degree for a period of six years (article 92 of the Constitution), and would not require a professional degree, but only to "have knowledge about Law according to the electors’ view (article 93 of the same federal charter)".2
3. The influence of the French legislation that was perceived vigorously in our country in several aspects of our legal body at the second half of the 19th century, determined a substantial modification of the structure and functions of the Minister Public, especially at a federal level, for it subtracted it from its attachment to the tribunals incorporating it to the Executive, besides it was also institutionalized by creating a hierarchical and unitary body under the dependence of the State Attorney General Officer.***
4. In fact, because of the constitutional reform of May 22, 1990, articles 91 and 96 of the Fundamental Charter were modified, the prosecutor was suppressed and, on the contrary, it was settled that: "...the officers of the Minister Public and the State Attorney General that shall preside it, shall be designated by the Executive".3 This modification was regulated by the reform to the preliminary title of the Federal Procedure Code of 1895 promulgated on October 3, 1900. By decree issued by the federal Executive branch in use of its extraordinary powers (which were very frequent at that time), the 16th of December 1908 the Federal Minister Public’s statute was issued with the regulation of its functions.4
5. The French influence is still perceived with more strength in article 5 of the statute, as it established that the Attorney General as well as the Minister Public’s officers, depended immediately and directly of the Federal Executive Branch by means of the Ministry of Justice.
6. Actually, this Federal Act finds its background in the Organic Law of the Minister Public in the Federal District and Territories issued on September 12, 1903, which for the first time institutionalized the Minister Public in a hierarchical way depending on the Executive of the Union, but not in a unitary way. Several justice attorneys were established as heads of the Minister Public: one in the Federal District, which had also competence in the northern party of Baja California and in the territory of Quintana Roo, a second attorney in the parties of the center and south of Baja California, with residency in La Paz, and a third one located in the territory of Tepic (article 5).5
7. Despite the intention of adapting the French’s conception of the Minister Public in our country, the Mexican lawmaker, especially by means of the Codes of Criminal Procedure of the Federal District and Territories, and the states, did not understand the French system quite well. Such codes granted the local criminal judges, some of which were called judges in charge of preliminary stage of criminal proceedings, **** the function of judicial police. This function was shared with the Minister Public and with the policy bodies, without knowing about the attributions of the so-called instruction judges in the French criminal procedure regulation (see infra paragraph 107). These Mexican judges took part in the decision of the procedural question, which caused a real distortion providing that such judges carried investigations directly substituting the Minister Public in various occasions. They also decided about the guilt or innocence of the accused, and not in few occasions true persecutory abuses were committed, which were afterwards pointed out in the declaration of motives of the Constitution draft presented by Venustiano Carranza, head of the Executive Power, to the Congress of Querétaro on December 1st, 1916.6
II. THE MINISTER PUBLIC IN THE CONSTITUTION OF 1917
8. We shall briefly make reference to the regulation of the Minister Public in articles 21 and 102 of the Constitution draft of December 1st, 1916, in which it is clear that they were the two main innovations that were tried to be inserted into such dispositions, separating themselves from the legislation issued under the effect of the Fundamental Charter of 1857.
9. a) In the first place, such project moves away from the French model that had already been deficiently applied, especially after the constitutional reform of 1900 (see supra paragraph 7). This, by pretending to separate the Minister Public from who was unduly qualified as judge in charge of preliminary stage of criminal proceedings, actually, trial judge (see supra paragraph 4) when conferring to the first one the exclusive faculty to investigate and persecute the crimes as well as the responsibility of what was improperly called investigative police force.+ The latter was then transformed into a special body, and not as before, into a simple activity carried by administrative officers, which also included the Minister Public and even the judge of the procedural question, qualified as judge in charge of preliminary stage of criminal proceedings.
10. b) In the second place, article 102 determines the attorney general’s++ attributions besides those conferred to him by the statute of 1908 (see supra paragraphs 4 and 5), as head of the Federal Minister Public and representative of the interests of the federal government, a new faculty was granted to him inspired in the figure of the United States’ Attorney General, that was related to the juridical assistance of the federal government.7
11. It was the first aspect that motivated the debates of the Constituent Congress, if the Minister Public’s performance in the criminal procedure is considered to have been object of several comments in the purposes article of the cited Constitution draft, which were carefully examined by the Constituent. It is convenient to transcribe the part regarding such purposes article:
...The laws in force, both in the federal ambit and in the common order, have adopted the institution of the Minister Public, but such adoption has been nominal, since the function assigned to the representatives of the latter, has a merely decorative character for the correct and prompt justice administration. The Mexican judges have been, since the Independent period till today, the same as the judges during the Colonial period: they are in charge of investigating the crimes and searching the proofs, to which they have always been considered authorized to carry out real assaults against the prisoners in order to make them confess, which undoubtedly would counteracts the judicature’s functions... The same organization of the Public Ministry (that was proposed in such draft), would avoid this vicious procedural system, restituting the judges all the dignity and respect of the total judiciary in the nation, would give the Minister Public all the importance that corresponds it, leaving exclusively to its charge the persecution of crimes, the search of elements of conviction, which would not be made through the unlawful or failed procedures, and the apprehension of criminals. On the other hand, the Minister Public, with the repressive investigative police force at its reach, would remove the municipal presidents and the common police that until now have had to apprehend anyone they judge as suspicious, without other merit than their peculiar criteria. With the establishment of the Minister Public as proposed, individual freedom would be assured, because according to article 16 no one could be detained but by an order of a judicial authority, which could not be issued but under the terms and with the requirements the same article demands8 (the italics are mine).
12. Within the debate, the respective decision caused in the sessions of January 5 and 12, 1917, the major concern was about the faculties of the administrative authority to impose punishments for breaching the governmental and police regulations, and secondly, about the functions of the investigative police force subordinated to the Minister Public. The discussions raised the issue of the existence of two concepts about such police: one that is contained in the purposes article as a specialized body, and another one some constituents sustained about the participation of administrative authorities in the function of the investigative police force, in accordance with the traditional system which, besides, granted such investigation faculties both to the Minister Public and the trial judge.9
13. The intervention of the prestigious jurist José Natividad Macías on January 5, 1916, was quite significant. He explained the constituents about the nature of the project in order to create a special police, he qualified as inquisitive (in the strict sense, investigative) in order to distinguish it from the preventive police. The latter shall be called investigative police force, +++ following the North American model (which does not use the French denomination), since in that country the criminal investigations are carried out by the Minister Public with the support of a body of agents organized and subordinated to the latter.10
14. In such discussions no reference was made to the merits of the case about the procedural function of the Minister Public, but the ideas contained in the purposes article clarified by José Natividad Macías, were implicitly accepted; the purposes article was even read several times. The part regarding article 21 of the Federal Charter was approved as follows: "The imposition of the punishments is reserved properly and exclusively to the judicial authority. The persecution of the crimes corresponds to the Minister Public and the investigative police force, which would be under the authority and immediate command of the latter…" (the italics are mine).
15. A different situation emerged with respect to the draft of article 102 of the Constitution, whose text refers to the organization and functions of the federal Minister Public and to its title-holder, the State Attorney General Office, since the following text was approved without debate in the Congress of Querétaro:11
The law shall organize the Minister Public of the Federation, whose officials shall be freely named and removed by the Executive, needing to be presided by an Attorney General, who should have the same qualifications required to be Magistrate of the Supreme Court. The Minister Public of the Federation shall be in charge of persecuting, before the tribunals, every federal crime. For this aim, he shall request the order of apprehension against the prisoners; search and present the proofs that evidence their responsibility; make sure the judgments are followed with regularity so that the administration of justice be prompt and fast; demand the application of penalties and intervene in all the issues the law determines. The State Attorney General Office shall personally intervene in all the issues in which the Federation takes part; in the case of ministers, diplomats and general consuls, and in those which would take place between the branches of the same State. In the other cases in which the Minister Public of the Federation shall intervene, the State Attorney General may intervene alone or by means of one of its agents. The State Attorney General Officer would be the government’s legal advisor. Both he and his agents would be strictly submitted to the dispositions of the law, being responsible of any fault, omission or breach they commit due to their functions.
16. Such text remained unchanged until the reforms of the nineties that will be mentioned later, except for a quite small modification in the year 1940.12
17. It shall be underlined that the Congress of Querétaro was not aware that such disposition was found in the third title, chapter 4, regarding the Federal Judicial Branch. However, since the 1900 reform to the article 91 of the Federal Constitution of 1857, the positions of prosecutor and attorney general as members of the Supreme Court of Justice were suppressed, only the Minister Public was directly dependent of the Executive Branch by means of its head, the attorney general (see supra paragraph 4). This was reaffirmed in our current Constitution, because probably for reasons of unawareness, the cited article 102 was kept in the Judicial Branch chapter, when it was to be placed correctly in chapter 3, which regulates the structure and functions of the Federal Executive Branch.
III. THE DEBATES ABOUT THE MINISTER PUBLIC IN MEXICO
18. The fundamental dispositions 21 and 102 mentioned above were regulated by the organic laws of the institution that were developed in two directions: in the first place, several regulatory laws of the Federal Minister Public were issued in 1919, 1934, 1941 and 1955, but with a better criterion, the denomination was changed in the Law of the State Attorney General Office, promulgated on December 30, 1974, this orientation being also observed in the subsequent ones. A similar evolution was followed by the legislation of the Federal District, to which the Laws of the Minister Public of 1919, 1929 and 1954 were issued, whose denomination was changed in 1971 to a more suitable name: Organic Law of the Justice Attorney General and (then), Federal Territories, substituted by the law with the same denomination, to the Federal District on December 1977.13
19. With respect to the criminal procedures code, the models followed during an extended period by the state legislatures were inspired essentially in the federal model of 1934 and in the district’s one of 1931, in which there is an accumulation of attributions that have been conferred to the institution, among which preeminence was granted to the exclusive faculty of investigation of crimes, with the investigative police force’s aid, which is a specialized body, at least from the formal point of view, which had to be at its orders.14
20. Since the federal charter came into force in 1917 several debates, sometimes passionate, among jurists, lawyers and judges emerged about the organization and functions of the Minister Public in a double focus: on the one hand, of its structure and insertion; and on the other hand, regarding its various attributions, in a special way with respect to its role in the criminal procedure.
21. a) Regarding the first sector, the controversy between two distinguished Mexican jurists in the Mexican Juridical Congress of 1932 is classical. We are referring to the opposite points of view expressed by Luis Cabrera and Emilio Portes Gil, the latter was then State Attorney General Officer.15
22. Luis Cabrera, in its work presented to the cited Juridical Congress proposed the Federal Constitution reform in everything concerning the composition of the Judicial Power and the Minister Public, especially article 102, so that such fundamental precept ought to establish that the head of the Minister Public had to be designated by the Congress of the Union, granting it unremovability and the same dignity of the Supreme Court’s ministers, for he would be part of such high tribunal, as it was the case of the original text of the 1857 Federal Charter, before the reform of 1900 (see supra paragraph 4), and personally or by means of his delegates, he would have to speak up.16
23. With respect to the Minister Public as a whole, according to Luis Cabrera, it should be qualified as an institution exclusively in charge of watching the strict fulfillment of the Constitution and the laws, being a guardian of the human rights and those of the society, and a defender of the constitutional warranties, for which he should intervene in every federal issue of public interest, as well as execute the criminal proceeding according to the law, for which the members of the institutions would have to be independent from the Executive Branch and their budget would have to be that which corresponds to the Judicial Branch.
24. He also sustained that the character of government’s jurisconsult the Attorney General had was notoriously incompatible with the Minister Public’s functions, since by intervening in the Amparo proceedings, ++++ he could not play the double role of defender of the Constitution, and assessor of the government about the actions carried out by the Executive itself, precisely under the sponsorship and according to the opinion of the Attorney General. In order to correct this situation, he proposed that a lawyer or attorney general of the nation ought to be established, being directly dependent of the President of the country and having the category of State Secretary, with the functions of representing the Federation in the judgments in which the latter was party, and the various branch offices of the Executive when they litigated as actors or defendants. He should also be considered as legal advisor of the government and natural head of the legal departments of the various administrative branch offices, and should head a board that would settle the norms of official interpretation of the laws for their concrete application in the ministries and departments.17
25. On the other hand, the general attorney at that time, Emilio Portes Gil, sustained the thesis of the unity of the institution of which he was the head, with a criterion that was opposite to Luis Cabrera’s arguments, since according to his point of view, an important sector of the Mexican doctrine had characterized the Minister Public as the public interest organ in the concrete application of the law. Of these extended attributions, the repressive function is quite important and shall be analyzed even when Luis Cabrera only outlines it, because it has been the most interesting act for the litigants in the everyday-life of the tribunals, especially in the subject of public order.18
26. According to Portes Gil, Cabrera intended to return to the system contained in the initial text of 1857, which placed among the members of the Supreme Court of Justice, a prosecutor and an attorney general with different functions and that in the practice could not be carried out, which was perfectly explainable since, if in our constitutional system the President had under his charge and responsibility the fulfillment of the public interests, it was hard to create a different officer who, without taking the responsibility in the fulfillment of the public interests, would have absolute autonomy to act before the tribunals in their name.
27. Finally, the general attorney Portes Gil expressed that it was important to take into account that the Minister Public was an Executive Branch’s organ, and the Minister Public’s independence proposed by Cabrera, that would be designated by the Congress, did not solve a problem that it pertained necessarily to men who could or who were willing to give life to the public institutions with wisdom and probity.19
28. This controversy reemerged because of a legislative initiative presented by the deputies of the National Action Party on October 19, 1971, in which the basic ideas formulated by Luis Cabrera in the 1932 polemic were retaken, with small modifications. Such initiative proposed the separation of the functions of the General Attorney’s Officer an those of the Federal Minister Public’s Head, for which article 94 of the Fundamental Charter ought to be modified, so that the composition of the Federal Judicial Branch would have a prosecutor as the Head of the Minister Public, and article 102 was to be reformed in order to separate the functions of the Minister Public and those of the Attorney General, since the latter should be the representative of the Executive Branch before the tribunals, as well as be his legal adviser. Thus, these faculties should be included in the chapter of the respective branch, in order to incorporate to the Executive the functions of the attorney general, with this purpose by modifying article 90 of the Constitution. Luis Cabrera’s initiative stood aside in that it was considered that the Head of the Public Minister had to be proposed by the President with the Federal Senate’s approval, in the same terms of the ministers of the Supreme Court.20
29. b) A second debate was held concerning the amplitude of the essential functions of the Minister Public, and the title-holder of the prosecution of the criminal procedure against the criterion that at that time predominated in the criminal procedure coded, both in the federal and in the local ones. Such debate was observed both in the doctrine and in the jurisprudence of the Supreme Court of Justice in the 1940’s, when a reaction against the predominant orientation came up in the mentioned criminal procedure codes, about the Minister Public’s absolute monopoly of the accusation.21
30. In fact, during a certain time, there was a majority opinion in the first chamber (criminal) of the Supreme Court of Justice, (which was not enough to reach a mandatory precedent for lacking one vote, being supported by only three magistrates) about the lawful character of the trial regarding fundamental rights requested by the offended or his assignees against the Minister Public’s reluctance to execute criminal action for considering basically that article 21 of the Constitution could not be interpreted as if it established the Minister Public’s absolute monopoly to establish the validity of the accusation. In this discussion well-known Mexican jurists participated, some of them were Ministers of the Supreme Court of Justice, such as Teófilo Olea y Leyva,22 Juan José González Bustamante,23 Carlos Francisco Sodi,24 Manuel Rivera Silva25 and Rafael Matos Escobedo;26 researchers such as Guillermo Colín Sánchez27 and even a distinguished constituent like Paulino Machorro Narváez.28 Regarding the trial regarding fundamental rights (juicio de amparo [N. of the T.]), the point of view of Ignacio Burgoa Orihuela29 was considered. More recently we should mention the careful and documented research of the young Mexican jurist Miguel Ángel Castillo Soberanes, who deeply analyzes the arguments sustained by the doctrine and jurisprudence in this debate.30
31. In the Supreme Court of Justice’s compulsory case law established after the majority thesis we have appointed (see supra previous paragraph), prevailed the criterion that the trial regarding fundamental rights did not proceed against actions of the Minister Public in the criminal procedure. This, because this high tribunal had interpreted constitutional article 21 in the sense that such precept granted the Minister Public an exclusive faculty in the fulfillment of the criminal action. Therefore, the trial regarding constitutional guarantees did not proceed against its determinations, because if admitted, it would fall into the inquisitive system of judgment which was already been left behind. Moreover, when the Minister Public itself took part in the criminal procedure, it carried out activities as a party and not as an authority. Finally, the individual affected would be given the chance to participate in the conduction of the public action.31
32. On the other hand, the issue regarding the problem of the prosecution of the criminal action exclusively by the Minister Public was discussed in two procedural congresses: the First National Congress of Procedural Law, which took place in Mexico City the 14th to 18th of February 1960,32 and the Second National Congress of Procedural Law that took place in Zacatecas on August 7 to 11, 1966.33 In both academic events the majority of the attendants held an opinion against the Minister Public’s monopoly of the prosecution of the criminal action, despite the arguments expressed by those who supported that exclusiveness.
33. We can summarize the legislation and practice of the Minister Public’s functions, both the federal ones and those of the federal states, according to the original text of constitutional article 21, with the pertinent observations of the prestigious criminal lawyer Olga González Mariscal, when she stated:34 "The almost unlimited faculties of the Minister Public turned it into an omnipotent power and as a consequence, in an ideal instrument in order to commit all kinds of injustices, thus, so dreadful for society".
IV. EVOLUTION OF THE MINISTER PUBLIC IN THE MEXICAN LEGISLATION. THE REFORMS OF 1991 TO THE CRIMINAL
34. The doctrinal and jurisprudential discussions that came up with respect to the legislation both organic and procedural about the structure and functions of the Minister Public, as well as the transformations that were gradually established in other legislations, particularly from Latin America, were a support to the subsequent constitutional and legislative reforms that took place in our country in order to gradually change the excessive faculties of the Minister Public. According to our personal criterion, we consider that such transformations took place in four stages: a) reforms of 1993 to the criminal procedural codes, b) constitutional reforms of September 1993, c) fundamental modifications of December 1994 and its development into criminal procedural codes, and d) new reforms of 1998, 1999 and 2000.35
35. A) The legislative reforms that came into force on January 1991 had their origin in the proposals presented to the Federal Executive Branch by the National Commission of Human Rights, that with small modifications were transformed into an initiative of the Executive, which was approved by a substantial majority of both chambers’ members.
36. a) First, we shall underline the dispositions that affect the faculties the Minister Public previously had in order to decide about the contents of the process. In fact, in accordance with the modifications to articles 298-304 of the Federal Code, and 600-667 of the Federal District Criminal Procedure Code, in cases of acquittal, it will always be the judge who decides whether it proceeds or not, in the first instance, but by majority of proportion in the second degree, because before, when the Minister Public’s agent directly or once the respective general attorney reviewed his appointment, requested such acquittal, he desisted from the action, or formulated un-accusatory conclusions, and the judge was obliged to detect such acquittal, which has the effects of an absolving verdict.
37. With the mentioned reforms that came into force in 1991, the judge recovered his faculties of deciding about the culpability or innocence of the accused, that as we have said, are established in constitutional article 21, effectively attenuating the exaggerated and unacceptable prerogatives granted to the Minister Public, because of an undue interpretation of the cited constitutional precept by the law-maker.36
38. b) Other important reforms, also in 1991, refer to the essential institution of the confession of the accused, particularly during the period of preliminary or previous investigation, which according to our system is carried by the Public Minister’s direction, with the assistance of which was previously called (and in some local codes is still called) investigative police force.° The Mexican Criminal Procedural Codes, as well as the Supreme Court of Justice’s jurisprudence,37 have admitted the validity of the declaration rendered before the agents of the cited police for judging it spontaneous, and the affected had to demonstrate that such confession had been obtained under coercion.
39. The modifications to articles 207 and 287 of the federal code and 249 of the district code established the dispositions that search to avoid the abuses that were committed in the previous inquiry. In the first place, by establishing the concept of the confession of the indicted considered as the voluntary declaration made by a person older than 18 years old in full use of his or her mental faculties before the Minister Public or before the trial judge or tribunal about facts that constituted a crime, but with the formalities appointed in article 20 of the Constitution.38
40. These dispositions were complemented with the categorical disposition established in articles 59 and 3rd, in both the last paragraph, of the federal and district codes of criminal procedures, respectively, in the sense that: "…the investigative police force shall only receive reports but not obtain confessions; if it does, those would lack any probative value" (the italics are mine). This precept suppresses any possibility that the policy agents exert power over the suspicious, since in this hypothesis, in the margin of the illegal actions they might commit and that were quite frequent, since the mentioned legislative modifications were made, the respective declarations cannot be taken into account in trial.39
V. CONSTITUTIONAL REFORMS OF SEPTEMBER 1993
41. B) A second phase of reforms was introduced in the constitutional modifications published on September 3, 1993, of which we will only comment those that affected the Minister Public’s performance, among which stands out that made to article 16 of the Federal Charter with respect to the term of administrative detention and retention the Minister Public may carry out during the period of previous inquire, which did not exist before. In fact, the part relative to such modification in its text in force states that:
Only in urgent cases, when there was a serious crime qualified as such by the law and with the founded imminent risk that the accused might avoid the justice’s action, and given the time, place or circumstance, without being possible to come to the judicial authority, the Minister Public under its responsibility, may order his detention founding and expressing the circumstantial evidences upon which criminal accusation is based. In cases of urgency or flagrancy, the judge that receives the consignment of the accused shall immediately ratify the detention or decree freedom with the legal reserves. No accused could be retained by the Minister Public for more than 48 hours, term in which his freedom could be ordered, or he could be put at the disposition of the judicial authority; this term could be doubled in those cases where the law judges as of organized crime. Every abuse to what was previously expressed shall be punished by the criminal law (the italics are mine).
42. a) Regarding administrative retention, it should be mentioned that the original text of constitutional article 16 establishes (and preserves) the hypotheses in which no judicial order of apprehension is required in order to detain a suspect, which are those relative to the cases of urgency when no judicial authority is found in that place, and of flagrancy, in which even any person may detain the accused.40
43. Nonetheless, the previous text did not specify the deadline the Minister Public had so that these two hypotheses put the accused at the judicial authority’s disposition, and of course, it lacked the faculties to order administrative detention. It prevailed the idea that the Minister Public only had 24 hours to carry out the consignment according to paragraph 3, clause XVIII of constitutional article 107 (which contains the guidelines about the trial regarding fundamental rights (juicio de amparo [N. of the T.]), precept that was suppressed by the abovementioned reforms of 1993 for being wrongly located, and some of its dispositions were incorporated to the text of article 19 of the Federal Charter.41
44. This omission of the Constituent of Querétaro about the administrative retention in the two cases of urgency and flagrancy, provokes numerous abuses in practice, which in many times were not caused by a fraudulent intention or by the serious negligence of the Minister Public to which the accused was handed in, but by the material impossibility of gathering, when no preliminary inquiry was carried out, the necessary elements for the fulfillment of the criminal action. In the legislations that follow the French model of the so-called judges in charge of preliminary stage of criminal proceedings,°° which is actually the judicial officer that watches the investigation without knowing afterwards about the merits of the case (see infra paragraph 107). This situation is easily solved because such judge has the permanent availability to authorize the detention. When there is not such an institution, and only the Minister Public is in charge of the previous investigation, as it happens in our own legal system, then the Minister is compelled to carry out such investigation, even if it is quite fast, in order to establish a basis for the consignment before the trial judge, which could not be made without the existence of certain minimum evidence about the material elements of the crime and at least some indices about the assumed responsibility of the accused.
45. If we review the Latin American Constitutions, the majority establish a term for the administrative detention and retention, generally in the same hypotheses of urgency and flagrancy; though, in certain cases, the established deadlines are unreal, because the Minister Public cannot fulfill them due to the need to carry out a preliminary investigation, even if it is a short one. Summarizing, we may mention the fundamental charters of Bolivia (articles 10 and 11) 24 hours; Colombia (article 28) 36 hours; Costa Rica (article 37) 24 hours; Chile (article 19 clause 7c) 24 hours in flagrant detentions and 48 hours in the rest of the cases in which it can be extended until five days as a judicial order, and ten days in case of a terrorist behavior; Dominican Republic (article 8 clause 2d) 48 hours; Ecuador (article 24, clause 6) 24 hours; El Salvador (article 13) 72 hours; Guatemala (article 6) 6 hours; Haiti (article 26) 48 hours; Panama (article 21) 24 hours; Paraguay (article 12.5) 24 hours; Peru (article 2, clause 24f) 24 hours, but it could be extended up to 15 days in cases of terrorism, espionage or illegal drug trafficking; and Venezuela (article 44.1) 48 hours. Besides, it shall be taken into account that there are differences in these legislations about the previous inquiry, since some of them have the legal control in the phase of the preliminary investigation.42
46. We consider correct the term of 48 hours established by the 1993 reform to article 16 of the constitution, since it is an average with respect to the deadlines included in the Latin American charters we just mentioned, and still, in some cases it might be short when the whole preliminary investigation is carried by the Minister Public.43 Establishing a shorter period is illusory, as the extreme case of the Guatemala legislation, which sets it in 6 hours. Regarding the fulfillment of the judicial warrant for arrest, the situation is diverse, since there shall be a preliminary investigation.
47. b) Another faculty given to the Minister Public in the 1993 reform to article 16 of the Constitution, is that which refers to the order of administrative detention the Minister Public may issue: "…only in urgent cases, when there was a serious crime qualified as such by the law and with the founded imminent risk that the accused might avoid the justice’s action because given the time, place or circumstance, access to the judicial authority becomes impossible…", but in this hypothesis the Minister Public shall found and express the indices (actually, presumptions) that motivate its proceeding. However, in order to avoid abuses, in the same warrant of arrest the same article 16 states that: "…in cases of urgency or flagrancy, the judge that receives the consignment of the accused shall immediately ratify the detention or decree freedom with the legal reserves…".44
48. c) Besides such faculties conferred to the Minister Public, the constitutional changes of 1993 made a significant but unfortunate modification by substituting the classical concept of corpus delicti,°°° which had already been explored and précised both by the doctrine and by the jurisprudence, with the new concept, of academic nature, elements of the criminal type.45
VI. CONSTITUTIONAL MODIFICATIONS OF DECEMBER 1994
49. C) The constitutional reforms published on December 31, 1994 introduced substantial changes in the organization and functions of the Federal Judicial Branch to which we will not make reference this time. We will only mention those that introduced modifications that affected the Minister Public’s regulation. The most important one was that which added a new paragraph to article 21 of the Federal Constitution, establishing: "The Minister Public’s resolutions about the non-prosecution and discontinuance of the criminal action could be impugned through the jurisdictional channel in the terms established by the law" (the italics are mine). This norm produced, when it first came into force, a broad discussion about the scope of the monopoly of the prosecution of the criminal action by the Minister Public (see supra paragraphs 29-31).46
50. This change modified substantially the concept developed in the legislation and in the jurisprudence about the absolute monopoly of the Minister Public, according to an interpretation that was excessive in our point of view, about the scope of the mentioned article 21, what had exceeded the functions of the Minister Public, generating a predominance of the opportunity criterion about the strict fulfillment of legality. It had also encouraged abuses in the Minister Public’s performance regarding the content of the criminal proceeding, to the detriment of the faculties of the trial judge with respect to the imposition of penalties, which according to the mentioned article 21 of the federal charter, is an "exclusive and characteristic faculty of the judicial authority".47
51. Since the addition of the mentioned article 21 was not regulated, in the beginning there were contradictions in the criteria of the different three-judge circuit courts¤ about the procedural channel that might be used in order to challenge the Minister Public’s determinations about the non-prosecution or the abandonment of the criminal action. The Supreme Court of Justice, when solving these contradictory theses, concluded that the correct one was the one that considered the trial regarding fundamental rights (juicio de amparo [N. of the T.]) as proceeding, and also determined that such impugnation shall be considered as a criminal matter, even when the respective resolution was pronounced by an administrative authority, like the Minister Public.48
52. In the same constitutional reforms of December 1994, certain aspects of the Attorney General Office were modified, which indirectly affected the functions of the Minister Public. The first one referred to the suppression of the function of legal advisory to the federal government by the title-holder of the Attorney General, established in the original contents of article 102 of the Federal Charter.49 The last paragraph of clause A of this article establishes at present that: "The function of government’s legal adviser will be in the charge of the office of the Federal Executive established by the law to such purpose" (the italics are mine).
53. With respect to the creation of a new organ that shall perform the functions of legal advisory that were previously carried by the Attorney General, several proposals were issued, such as the reestablishment of the Ministry of Justice, suppressed in article 14 of the Constitution in force in 1917, for considering that the Constituent affected the Federal Judicial Branch’s independence, and whose reinstallation has been discussed many times.50 Another one was to leave the Attorney General Office the essential attribution of the legal advisory, and on the contrary, to make the Minister Public independent, whose direction would be lead by a General Prosecutor’s Office.51
54. The solution established by the lawmaker was diverse, since the decree of May 14, 1996, published the next day, reformed the Federal Public Administration Act (article 43) in order to establish the Federal Government’s Legal Advisory Office¤¤ (which had previously worked as a legal office of the Presidency) and ample advisory faculties were granted to it, among which: to provide the President with technical legal support in all the issues he entrusted him; to put all the projects of law initiatives and decrees presented before the Congress of the Union, any of its chambers, or the Legislative Assembly of the Federal District, under consideration of the President, and if it were the case, to submit them to his signature, as well as the projects of treaties to subscribe with other countries and international organizations.
55. Another modification introduced by the mentioned constitutional reforms refer to the designation of the Attorney General whose election, according to the original text of the federal charter of 1917, corresponded discretionally to the President, who was also allowed to freely remove him from the charge. The new text establishes that the cited Attorney is named by the title-holder of the Federal Executive with the ratification of the Senate and if it were in recess, by the Permanent Commission, but he could be freely removed by the President himself. This last procedure was inspired in the one followed in the United States of America.52
VII. NEW REFORMS OF 1998, 1999 AND 2000
56. a) The modifications of 1998 were established in the exclusively legal and not constitutional ambit, besides, they are not directly related to the regulation of the Minister Public, but with its counterpart in the criminal proceeding, that is, the public defenders. Despite this, such legislation consolidates the principle of the contradictory since the first stages of the proceeding, thus we consider important to make reference to these changes that could be considered substantial in the federal ambit.
57. In fact, in our legal regime has predominated the anachronistic system of the office of public defender, ¤¤¤ suppressed in many contemporary legislations, even in some of Latin America. Since the first years of the second post-war period, there has been a considerable progress in the creation of public institutions of legal and procedural advisory for people with few or scarce resources that cannot have access to particular lawyers for their defense. For this reason a movement was started in order to establish a true access to justice, since traditionally, the right to have access to jurisdictional support only worked effectively for a reduced number of justiciable people.53
58. With the purpose of overcoming the difficulties of the people without enough economic and cultural resources, were created public organisms of legal advisory in several European legislations, as well as in the United States, which with the collaboration of private and public defenders, give professional help to those who cannot have access to particular advisors or who do not have the possibility to cover the procedural expenses. This time, it would not be feasible to make reference to these instruments of access to justice, so we would limit to appoint such means that have gradually become a social security system, parallel to that of health services, previously established.54
59. About this issue we shall mention the Federal Public Defender Act, published on May 28, 1998. Such legislation was developed by the General Foundations of Organization and Operation of the Institute of Public Defender, approved by the Directive Board of such institute, published in the Federation Official Book¤¤¤¤ on November 26, 1998 and reformed by the same Directive Board in accordance with the experience of the performance of such legislation. These modifications were published on February 19, 2002.
60. The cited law establishes the Federal Institute of Public Defender headed by a Directive Board composed by well-known prestigious lawyers and jurists, guided by the director of that institute, which depends on the Judicial Branch of the Federation by means of the Federal Judicature Council, but with administrative and operational autonomy. The cited institute is in charge of designating the defenders and the new category of public assessors, the former in criminal matters and the latter in administrative and fiscal matters. All of them enter through a competition and if satisfactorily approved, the defenders and assessors are granted with stability in their positions and promotions also by competition, according to the regime of civil career service. I shall add that the salary is quite high if compared to that of the Federal Judicial Branch’s personnel.
61. A considerable progress with respect to the previous situation was shown with the intervention of the defenders in the preliminary inquiry stage, carried by the Minister Public, which reinforces the accusatory regime that the constitutional and legal modifications aim, by introducing the contradictory system since the beginning of the ministerial investigation. This was not easily obtained, given the resistance of a sector in the Minister Public that was used to the traditional regime of the exclusively development of the investigation. Besides, for the first time in our legal regime is found the category of public assessors that support people with scarce resources that require the professional help both before and within the process. It could be asserted, without exaggeration, that the development of the federal defense and assistance office has had a remarkable development in the short time it has been working, as the annual reports of its distinguished director show, which is the well-known federal Magistrado César Esquinca Muñoz.
62. The most recent Latin American Constitution, the Venezuelan of 1999 that came into force the next year, has followed the guidelines of the modern system of legal advisory. Its article 268 establishes: "Public defender service. The law shall establish the autonomy and organization, operation, discipline and suitability of the public defender service, in order to assure efficiency of the service and warrant the benefits of the defender’s career".
63. The creation of the Federal Institute of Public Defense significantly contrasts with the deplorable condition of the public defenders± of the federal states, including the Federal District, which are anachronistic for several reasons: they are placed within and depend on the administrative authorities, not within the Judicial Branch, where they shall be; the salary is quite low and cannot be compared with that of the judicial officers; they are named discretionally so they lack stability, and finally, they have a disproportioned burden or work compared to their possibility of professional support. All this leads to a high level of inefficiency, not being considered as an attractive work to lawyers with an adequate level to the importance of the function. In our point of view, it would be adequate if the improvement reached at the federal level could influence in the local ambit, as an urgent and unextendible matter.
64. b) The reforms published on March 8, 1999, both in the constitutional ambit and in the criminal procedural codes, become a rectification of the changed implemented in 1993, that as we previously mentioned (see supra paragraph 48), lead to controversies and problems in the relationship between the Minister Public and the judges. To this respect, constitutional articles 16, 19 and 20 were modified, mainly to return to the concept of corpus delicti that, as we previously explained, was substituted with the polemic institution of subjective elements of the type, which was object of many debates and complications that intend to be overcome with these changes that transcended the modifications of the criminal procedural codes, both the federal one (article 168.2) and that of the federal district (122), by decrees published on May 18 and 2nd of 1999. This, with the purpose of establishing a concept of the corpus delicti, which is defined similarly by such legislations as the group of objective or external elements that constitute the material character of the fact established as crime by the law, as well as the normative elements in case the typical description requires it.55
65. c) The changes introduced by the legislative decree published on November 21, 2000 were basically concentrated in developing the victim’s rights or those of the offended by the crime, because of an intense doctrinal debate about the how forgotten were the passive subjects of the crime, since the rights of the criminal suspect had been satisfactorily regulated in article 20 of the federal charter. To such purposed, this article was divided into two clauses: A to consign the traditional rights of the accused, and B to broadly appoint the victim’s rights or those of the offended, correcting the mistake of casting into oblivion for many years the prerogatives of the latter.
66. Clause B contains six fractions and among the rights and prerogatives of the victim or the offender, it establishes: receiving legal advisory that includes being informed about the rights the federal charter establishes in his favor, and the development of the criminal procedure; to cooperate with the Minister Public, that is, he has the right to have all his probative information or elements received; the right to the indemnification for damage, to which the Minister Public would be compelled to request such indemnification and the judge shall not exonerate the accused of the indemnification when it had issued a verdict of guilty, and the law shall set agile procedures in order to fulfill the verdicts regarding indemnification. Besides, it adopts the principle that the economic compensation shall be received since the moment the crime was committed, including medical and psychological urgency attention.
67. In order to regulate these last constitutional reforms, to the Federal District Code for Criminal Proceedings published by legislative decree on September 30, 1999 was added a new chapter I-bis, entitled About the victims or offended by a crime, whose rights are extensively developed in article 9 in force, which contains 20 fractions and entrusts the system of assistance to the victim, to the Attorney General of Justice of the Federal District. Such rights could be demanded both during the previous investigation phase, and during the process, depending the case. The cited precept develops and appoints the rights established in the Federal constitution, and includes the right to challenge the determination of non-prosecution of criminal action. From a generic point of view regarding these additions, we may say that although it is not stated expressly, the Minister Public’s character of third party±± to the victim or to the offended by the crime, which constitutes a significant advance with respect to the previous situation.
68. On the other hand, a tendency has started to take place in the most recent criminal procedural codes issued in the states of Morelos (1996) and Tabasco (1997), whose projects were written by the outstanding Mexican jurist Sergio García Ramírez in order to modify the indemnification of damage regime. The latter, because in certain legislations it has stopped being considered as a penalty imposed for a public crime, as it has been established until now, therefore such indemnification may be requested by the victim or the offended by the crime, which in this hypotheses becomes the principal party and the Minister Public becomes the character of secondary actor, which shall be considered as a true advance.56 It is also necessary a more extensive regulation, for example, the information about the legislative faction of the National Action Party has prepared an initiative of a Regulatory Law of clause B of constitutional article 20, which is a project that proposes the creation of a National Institution to Assist and Protect the Victims of Crime.
VIII. FUTURE OF THE MINISTER PUBLIC. SUBSTANTIAL REFORMS
69. We may assert that at present, the Minister Public in Mexico has transformed substantially compared to the institution that was established in the original text of the Constitution of 1917 and its regulation in the criminal procedural codes. The latter, if we take into consideration that the cited Minister, with different modalities in the local and federal ambits, does not preserve the monopoly of the prosecution of the criminal action anymore; and its excessive faculties granted to it in detriment of the criminal tribunals, of the accused, as well as of the victims or the offended of the crime, have also been reduced. Moreover, efforts have been made in order to try to correct, at least in the federal ambit, the accumulation of powers that sometimes have been contradictory, such as the government’s attorney, which is now carried by a centralized body of the Federal Executive Branch.
70. On the other hand, the rights of the accused have been reinforced, especially his right to non-incrimination, when determining the legal value of the confession in the process, and the defender’s participation, at least in the federal ambit, since the beginning of the preliminary investigation. The Minister Public has been granted faculties of retention and detention of administrative nature, and with the reforms of 1999 and 2000, the necessary elements for the prosecution of the criminal action have been determined, as well as the prerogatives of the victims or the offended by the crime. Important steps have been made to reinforce both constitutional faculties and those of criminal character pertaining the Minister Public. Though, evidently they have not been enough to protect precisely the rights of the accused, of the victims or of those offended by the crime, neither the community’s rights to safety and the fight against impunity, as well as the efficient organization and operation of the Minister Public. There is a long way to go. In the following paragraphs we shall mention the proposals done to improve the institution in the Mexican legislation.
71. In our concept, the essential reforms that shall be implemented to improve the important institution of the Minister Public of Mexico has to follow the next steps: a) autonomy of the proxies±±± and the Minister Public, b) improvement of the Legal Advisory of the Federal Government, c) creation of the Federal Councils of the Minister Public and of the investigative police force, and d) introduction of the so-called judges in charge of preliminary stage of criminal proceedings.
1. Autonomy of the proxies and of the Minister Public
72. Since the constitutional reform of 1900 to the Federal Constitution of 1857, which suppressed the positions of attorney general and of prosecutor that were part of the Supreme Court of Justice (and for this reason the constituents of Querétaro inadvertently regulated the organization and faculties of the State Attorney General in the chapter regarding the Judicial Branch of the Federation (see supra paragraph 17), and of the establishment of the State Attorney General Office as a centralized branch office of the Federal Executive Branch. Both the title-holder and the agents of the Federal Minister Public and those of the federal states are framed within the corresponding Executive branch, since the proxies may be freely named and removed by the title-holder of the Executive. However, at least in the federal ambit there has been one step ahead in the constitutional reform of 1994, because since that time and in accordance with the American model, once the attorney general is named by the President, he shall be ratified by the Senate (article 102, clause A of the federal charter) but may be freely removed by the head of the Executive, with which the Federal Minister Public continues being a branch office of the Executive, reason why this institution remains in the federal states (see supra paragraph 55).
73. There is a vigorous tendency in various contemporary legislations to grant the Minister Public with autonomy, which could have a constitutional category in the future. Even in French Law, which originally established the model of direct and centralized dependence of the institution towards the Executive Branch, there has been a tendency towards autonomy, even if it is relative, because the training of the Minister Public’s agents is the same one as that of the judges. This means that in order to be part of the service, they have to attend the judicial school. Once they have passed the respective examinations, they are promoted through a system of opposition within the regime of judicial career, so that the Minister Public’s agents can be named judges and vice versa, since both categories have the name of magistrates, which grants them stability, even if it is restricted.57
74. It must be pointed out that since the First Mexican Congress and the Second Iberoamerican Congress of Procedural Law, which took place in Mexico City on February 1960, the recommendation was approved in the sense that: "…the Minister Public shall be an independent body of the Executive Branch and enjoy the prerogatives of unremovability and other constitutional warranties granted to the members of the Judicial Branch" (the italics are mine).
75. This is not the time to examine in large detail the various modalities of the Minister Public’s autonomy, either with the French denomination, or the Spanish of prosecutor’s office (fiscalía), which may assume various modalities both in the designation of title-holders of the institution, and in their framing within the bodies of power of the State. In general terms, we can state that there are three tendencies about the autonomy of the Minister Public: a) preserve the dependence of the Minister Public towards the Executive Branch, but with functional and administrative autonomy; b) to incorporate the Minister Public to the Judicial Branch; c) to grant the institution the category of autonomous constitutional organism.
76. a) The first modality has been consolidated within the legislations that follow the French model, which even when they put the Minister Public within the Executive Branch, they grant it functional and administrative autonomy, they also grant the members of the institution the same prerogatives given to the judges and magistrates regarding objectiveness, stability (through a true professional career), salary and authority.
77. b) A second tendency, the most developed in Ibero-America is the Minister Public’s incorporation within the Judicial Power, but generally with its own regulation, because if it develops a judicial activity, it differs clearly with the jurisdictional one that concerns the judges and magistrates. This tendency was started by the Italian Constitution of 1948, whose article 107 establishes: "The Minister Public shall enjoy the guarantees established with respect to it in the norms of the judicial legislation".58
78. The Spanish Constitution of 1978 follows the same orientation and places the Minister Public in the chapter pertaining the Judicial Branch (article 124), but it is only mentioned as a reference (article 435) in the Organic Law of the Judicial Branch of July 1st, 1985, for it is regulated by the Organic Statute of the Fiscal Ministry, ±±±± contained in the Law of December 30, 1981. Article 20, the first one of this last legislation, is very clear about this: "The Fiscal Ministry integrated with functional autonomy in the Judicial Branch, executes its function through its own organs, according to the principles of unity of action and hierarchical dependence, always submitted to those of legality and impartiality…" (the italics are mine).59
79. The Latin American legislations that with certain differences incorporate the Minister Public or Fiscal to the Judicial Branch, depending on which the predominant denomination used by the officers that carry the investigation and prosecuting activities of the crimes, but without mistaking their attributions to those that correspond the jurisdictional organs. In this sense, we could mention, among others, the Constitutions of Colombia, El Salvador, Paraguay and Peru (in its charters of 1979 and 1993), as well as several Supreme Laws of Argentina’s Provinces.60 The members of the Minister Public have gradually separated from their traditional activity of administrative employees, in order to assume the category of judicial officers, either from the formal and material point of view, or only in this last sense.
80. Finally, this evolution may lead the Minister Public to constitute itself as an autonomous constitutional organism, according to the tendency followed in contemporary constitutionalism of granting this category to certain institutions that require a great deal of independence in order to perform its functions. As an example we could mention that in our legislation this level has been assigned to the Bank of Mexico, to the Federal Electoral Institute and recently to the National Commission of Human Rights (1999).
81. The closest Latin American legislation to the autonomous constitutional character of the Minister Public is the Constitution of Argentina, substantially reformed in August 1994. It is convenient to transcribe article 120 of such fundamental charter:
About the Minister Public (Independence. Function). The Minister Public is an independent organ with functional autonomy and financial autarchy, whose function is to promote the performance of justice in defense of the legality, of the general interests of the society, in coordination with the other authorities in the country. (Integration) It is conformed by a State Attorney General Officer and a State General Defendant and the other members established in the Law. Its members enjoy the functional immunities and intangibility of remuneration (the italics are mine).61
82. The predominant Argentinean doctrine agrees in the sense that the purpose of the constitutional reform was granting the Minister Public with the category of an extra-branch organ, that is, that does not depend on any of the traditional organs (which in our opinion characterizes the constitutional autonomy). Though, such fundamental text is schematic and imprecise, thus there is no clarity in the scope of such autonomy, which could be interpreted in different ways by the ordinary lawmaker when regulating such constitutional text.
83. It is not easy at all to have a formula to obtain the most convenient solution in order to reach the autonomy of the Minister Public in our country, which as we have mentioned, since 1900 was directly included to the Federal Executive or to that of the federal states in a close dependence that affects the objectiveness and impartiality with which it shall operate. One step forward was the constitutional reform of December 31, 1994, because since then and following the North American model, the State attorney general, once he was designated by the Head of the Federal Executive Branch, shall be ratified by the federal Senate or, during its recesses, by the Permanent Commission (first paragraph of clause A, article 102 of the Federal Charter, see supra paragraph 55).
84. It is necessary to follow this evolution towards the autonomy of the Minister Public, both federal and in the federal states. In order to reach this, there are several options, like the ones previously mentioned (see supra paragraph 75). Perhaps the easiest one, for it does not require substantial modifications, would be establishing a system that is similar to the procedure for the designation of the Supreme Court of Justice’s Ministers, which is covered by article 96 of the Constitution in force. The President names the candidate to become State Attorney General in front of the federal Senate and during its recesses, in front of the Permanent Commission (because the group of candidates proposed from which one will be selected to become minister of the Supreme Court have many inconveniences), in order to ratify such proposal during a determined period, which shall not coincide with the presidential period, and also, he shall only be removed from its charge because of the causes of responsibility established by title four of the Federal Constitution. With respect to the general attorneys of the federal states, the same procedure used to designate the magistrates of the respective Superior Tribunal shall be followed. The latter would grant functional and administrative independence to the title-holders of the Minister Public, similar to the one conferred to federal and local magistrates.
85. This first step could be complemented with the formal incorporation of the Minister Public to the Judicial Branch, both at a federal and local level, but with its own regulation following the Spanish model, which has also been adopted by several Latin American legislations. The important thing is to confer both the title-holder and the members of the Minister Public the so-called judicial warranties of preparation, selection, stability, remuneration and authority that have been established for the judges and magistrates in our legislation.62
86. The most advanced proposal would be transforming the General Attorney Offices into constitutional autonomous organs, as it has happened with other institutions in our country, following the tendency of the constitutional autonomy of organs that require a great independence in order to carry out their faculties in a freer way. Though, this would require a considerable evolution not easy to reach after a century of direct dependence of the Minister Public with respect to the Executive Branch. The most important issue, as it has been repeated constantly (which explains the tendency to incorporate that institution to the Judicial Branch), is granting the Minister Public the same prerogatives of the judicature’s members, for they carry out activities that are parallel to those of the judges, since both the judicature and the Minister Public shall act in coordination in the jurisdictional processes in which they take part.
87. We are convinced that the title-holders’ stability and of the members of the Minister Public, which shall be granted with similar prerogatives to those granted to the judges and the magistrates, will improve substantially the justice procurement in our country. Nowadays, despite the progress reached in the last few years, the investigating and prosecuting institution is quite depreciated by the public opinion, because its direct relation with the Executive has affected seriously the principles of objectiveness and good faith that shall rule the activities of the Minister Public. This subordination has caused, more intensely at the local level, the predomination of discretion over legality.
2. Improvement of the Legal Advisory of the Federal Government
88. We have previously stated (see supra paragraphs 52-54) that in the constitutional reforms of December 1994, the faculty of the State Attorney General Officer which the Constituent of Querétaro granted it, regarding the Legal Advisory of the Federal Government was suppressed as a result of the classical debate carried by the Mexican jurists Luis Cabrera and Emilio Portes Gil in the Mexican Legal Congress of 1932 (see supra paragraphs 21-27). As we have also mentioned, as a support to this suppression, article 43 of the Organic Law of the Federal Public Administration was modified in order to regulate the Legal Advisory of the Federal Government, whose main attributions have already been exposed.
89. As it can be inferred, among the faculties granted to such Advisory (see supra paragraph 54), the attributions of assistance and legal representation of the federal government are quite significant. We consider that they shall be added to other ones regarding the analysis and planning of the instruments concerning the procurement and implementation of justice in the federal level, in coordination with the Federal Attorney General of the Supreme Court of Justice‡ and the Federal Judicature Council. This shall be done by means of studies carried out directly or by orders of the Commission of Legislative Studies of the Federal Government, as well as with a more extensive representation of branch offices of the federal government. In other legislations, even Latin American ones, these attributions are granted to the Secretaries or Ministries of justice. Such organism does not exist in our country, since it was suppressed by the Constituent of Querétaro for considering that it represented an undue intervention of the Executive in the independence of the Judicial Branch.
90. Recently there has emerged a tendency of thought that has proposed the reestablishment of the Ministry of Justice in our constitutional legislation. Though, it is biased with respect to the ample faculties granted to it while the Constitution of 1857 was in force,63 as a result of the modernization that implies the creation of the Judicature Councils or the Magistratura. We consider it would be better to reinforce the attributions of the Legal Advisory of the Federal Government and add them to the ones that correspond the current justice secretaries or ministries. This would offer the advantage of not creating polemic about the restitution of an organ that is equivalent to the latter; on the contrary, the figure of a true attorney of the nation‡‡ would be strengthened, as the prestigious Luis Cabrera proposed. This reinforced Advisory could also be a model to the legislations of the federal states.
3. Creation of the Federal Councils of the Minister Public and of the investigative police force
91. Although much progress has been made in the regulation of the Minister Public and the investigative police force at least in the federal ambit, there is still a long way to go in order to reach a satisfactory solution in the fundamental sector of the implementation of justice in our country. This evolution has already begun because there have been established instruments that may lead to a true professional career for this two institutions. We could mention the gradual improvement of the training institutes of the Minister Public and of the police, which theoretically shall be at its disposition for the investigation of crimes.
92. It is important to underline the recent efforts carried in the State Attorney General towards the professional training of the investigative agents and the police force, because of the courses that shall be taken in the Institute of Training for Police Agents and Experts and the National Institute of Criminal Sciences, which culminate with opposition examinations for the selection and admission of the agents of the Federal Minister Public once they have passed the corresponding courses.
93. On the other hand, because of the serious situation of insecurity and impunity along the national territory, during the Presidential period of Ernesto Zedillo, was created the Federal Preventive Police Force, which was granted with considerable resources and instruments, and is currently integrated to the new Ministry of Public Security. Besides, with the reform of the By-laws of the Organic Law of the State Attorney General Office, published in the Federation Official Book on October 1st, 2001, the Federal Investigation Agency was introduced, inspired in the well-known North American institution, the Federal Bureau of Investigations (FBI).
94. With independence of the denomination of this new body that substitute the previous Judicial Police, whose name was suppressed in the reform to article 21 of the Federal Constitution on July 3, 1996,64 and that is actually a police investigation force, this corporation shall be substantially modified in order to overcome the depreciation it has suffered among the people. In order to reach this purpose, it is not enough to change its name; it is necessary that the agents become professionals through a truth police career. This does not necessarily imply a prolonged training, but to take courses equivalent to a bachelor, as it happens in many other countries, in which there is a rigorous preparation and selection. It must be recalled that during the 1930’s President Franklin D. Roosevelt entrusted famous John Edgar Hoover the reorganization of the North American Federal Police force. It was substituted with the creation of the Federal Bureau of Investigations in a situation of serious insecurity provoked by the criminal activities of the powerful mafias of that time (which we now call organized delinquency). Such director established the exigency that besides a subsequent training, the applicants shall have a bachelor degree, preferably in Law.
95. Although an evolution was started for the professional training of the applicants for the Federal Minister Public, it is indispensable to create a real ministerial career with different specializations according to the different functions carried by the Minister’s agents. Particular attention shall be put to those in charge of preliminary investigation because during a long time it has had serious deficiencies because the ones that shall direct and carry out the police investigation do not know the techniques.
96. We are convinced that there could be no true political and ministerial political careers without an organ in charge of applying them; to this, we need to turn to the Judicature Councils of the Federation and of the Federal District, which were introduced in the reforms to articles 94, 100 and 122 of the Federal charter in the constitutional reform of December 31, 1994.65 According to such precepts, we can state that the Federal Judicature Council is an organ of the Federal Judicial Branch with technical and managerial independence in issuing its resolutions. It is in charge of the administration, vigilance and discipline of the Federal Judicial Branch, except for the Supreme Court of Justice. The President of the Supreme Court shall be also that of the cited Council. The precepts regarding the Federal Judicature Council were modified by legislative decree on July 11, 1999, and the constitutional foundations of article 100 were developed by the Organic Law of the Federal Judicial Branch, published on May 25, 1995, with reforms in 1996 and 1999 (title 6th, chapters I to III, articles 68 to 155).
97. We consider quite complicated pointing out the various attributions of the Federal Judicature Council, which are many, reason why we shall focus on the part regarding the judicial career. The latter shall be a model, with the pertinent modifications, for the police and ministerial careers, taking into consideration that such career is inseparable of the attributions regarding investigation, training and updating of the members of the Federal Judicial Branch (in this case, of the agents of the police force and the Minister Public). In this last aspect, the Training Institutes and the National Institute of Criminal Sciences already exist.
98. It is necessary to carry out a study, not exclusively technical but also sociological of empirical nature, in order to prepare the reforms required for the creation of one or two police and ministerial Councils which, besides having administration and prosecution attributions, shall be in charge of the essential function of implementing the respective careers similar to that of judicial character, which is under the charge of the Federal Judicature Council, and which shall be considered as one of the most transcendental activities.66 According to the model the police and ministerial Council (s) shall be composed by a superior amount of representatives of both organs, following a system of objective selection that considers their preparedness and performance. Moreover, external jurists and scholars shall also be part of these organs, designated by the legislative chambers and the Executive Branch, so that other legal sectors could also be represented in a more reduced number, avoiding, this way, the problem of the closed and inbreeding organs.
4. Introduction of the so-called judges in charge of preliminary stage of criminal proceedings
99. We consider it is important to carry out a study in order to propose the creation in our legislation of the so-called judges in charge of preliminary stage of criminal proceedings‡‡‡ (who are those who prosecute the preliminary investigation), in the presentation of the accused before the trial judge, who should decide about the merits of the respective process. At this moment, as far as we know, there is no Mexican source of a comparative study of this judicial system, because it is commonly mistaken with those that were named this way by the criminal procedural codes issued during the time the 1857 Constitution was in force (see supra paragraph 7).
100. On the contrary, the European judges that act as prosecutors in the investigation carried by the Minister Public, especially in the criminal procedural legislations in the Federal Republic of Germany, Spain, France and Italy, even when they are called judges‡‡‡‡ because they ought to take the decisions that restrict freedom of the accused, they shall not be mistaken with the judges or tribunals that shall decide about the merits of the process, in which the judicial officers in charge of prosecuting the necessary inquiries for the prosecution of the criminal action do not intervene.
101. Not much has been studied regarding the functions of the judicial officer known as judge in charge of preliminary stage of criminal proceedings (juez de instrucción) which is the term used in the Spanish and French legislation. One of the reasons why it is not easy to understand this institution is because such denomination is confusing, because it is neither the trial judge• that has all the elements of convincement and leads the procedure in order to take a resolution about the innocence or guilt of the accused, but it is a prosecutor of the inquiry activity of the police agents and the Minister Public. For this reason the investigation police force is qualified as judicial, because it depends on the cited control judicial officer. ••
102. Article 109 of the Italian Constitution of 1948 categorically states: "The judicial authority directly disposes of the investigation police force" (the italics are mine). The interpretation of this statement has raised polemic both in the doctrine and in the jurisprudence because the agents conform several corporations such as the State police force, the revenue guards••• and the police that depend administratively and financially of the State Attorney General before the tribunals and the preturas. Though, according to the current Criminal Procedural Code that came into force in 1989 (article 55 and subsequent), the police agents shall act under the dependence and direction of the judicature, even with respect to those agents who do not perform directly functions of the investigative police force.
103. In the various criminal procedural codes or laws, the judge in charge of preliminary stage of criminal proceedings, despite his various modalities, has the common attribution of prosecuting the preliminary investigation, controlling the Minister Public’s activity and that of the investigative police force, and deciding about the measures restrictive of the freedom of the accused, until the moment the case reaches the trial judge or tribunal.67
104. As an example we can say that in the criminal procedure of the Federal Republic of Germany, in the preparatory phase, the Ministerio Fiscal (Staatsanwaltschaft) that depends on the Justice Department of the Federation or the States (Länder), is under the prosecution of the judge in charge of preliminary stage of criminal proceedings (Der Ermittlungsrichter, literally judge of investigations). Such judicial officer decides about the actions that affect essentially individual freedom such as temporary prison or transitory imprisonment in a psychiatric hospital, about the cancellation of the driving license, etc.68
105. In the Belgian criminal procedural regime, inspired essentially in the French regime, there is also a judge in charge of preliminary stage of criminal proceedings, who has a double role. On the one hand, he acts as an police investigation force officer as it renders about the commission of a fault; he compiles the proofs and elements about the assumed guilt of the accused, but he acts as a judge when he ponders the elements of the expedient and issues a verdict about the conclusion of this period. Though, he does not decide about the course that should follow the merits of the process, since he limits to remit the expedient to the trial judge with the documents of the Ministerio Fiscal.69
106. Even when the investigation control judge that depends on the Minister Public and the police already existed in the Italian legislation, his attributions have been specified in the new Criminal Procedure Code published on October 24, 1988, which came into force the following year. According to this legislation, the preliminary inquiry judge (guidice per la indagini preliminary) who is instituted in all the tribunals, intervenes in four aspects within the investigation: a) in the control of the initiative of the restrictive measures of the fundamental rights and of the individual freedom; b) in the prosecution of the duration of the preliminary investigations; c) in the prosecution of the criminal action, and d) in the anticipated practice of the evidence.70
107. The French criminal procedural legislation has been a model to the rest of the European legislations regarding the institution that qualifies, without much suitability, as judge in charge of preliminary stage of criminal proceedings (juez de instrucción) who, like other judicial officers we have referred to in the previous paragraphs, carries out also activities of investigation and of jurisdictional nature; the latter with regards to the affectation of the personal freedom of the accused. It executes its inquiry power according to the provisional qualification of the facts carried by the Minister Public, and it does so either personally or through an official of the investigative police force. When the cited judge in charge of preliminary stage of criminal proceedings considers this stage is concluded, he communicates it to the parties and their lawyers, and in a 20-day-term, he transfers the expedient to the State prosecutor so that he can make a classification brief. Then, he issues a decree of conclusion of that stage, which allows the consignment, if it proceeds, before the judge or competent tribunal in order to decide about the merits of the case.71
108. Even when in Latin America there is no adequate knowledge of the European judge in charge of preliminary stage of criminal proceedings, when a movement of reform of the criminal procedural codes began, in which important aspects of the inquiry system prevailed, especially in the initial stage of the investigation, it is evident the intention of approaching the so-called accusatory system. This has started a comparative examination of the cited judge of the investigation. At least we could mention the example of the important Chilean criminal procedure reform, promulgated on September 29, 2000. Among the innovations introduced were the establishment of the judge in charge of the control of the preliminary stage of criminal proceedings, •••• with the essential function of watching the fulfillment of the procedural rights during the investigating stage carried by the Minister Public. All this, with the purpose of overcoming the inquisitive aspects of this stage of the procedure.72
109. In our legislation, given the weight of the tradition and the disparagement of the former judges in charge of preliminary stage of criminal proceedings of the 19th century, which they were not such, it is not easy to adopt this European institution. But at least in a first stage criminal judges could be able to be designated as judges of the investigative prosecution in certain cases, whose merits shall be ignored by them. Anyways, the current criminal judges shall intervene in the preliminary investigation stage, which corresponds to the Minister Public, whenever it shall come to those judges for their authorization to take the restrictive measures of the freedom of the accused during this period. This, with the support of constitutional article 16, as those regarding the investigation order, authorization of phone interventions and the acts of providing bond. #
110. The advantage over the present situation would be that the designated judge in charge of the preliminary stage of criminal proceedings would prosecute its legality and would have a more reliable information in order to determine the restrictions to personal freedom of the accused, with respect to his rights or those of the victim or the offended by the crime, established in article 20 of the Constitution. On the other hand, by being excluded, the judicial officer that controls the investigation of the decision about the merits of the process in case of prosecution of the criminal action, would not have his impartiality endangered given his intervention in the preliminary investigation activities.
111. The adoption of the provisional system we propose could also serve as an experimental regime that could subsequently support the introduction of the autonomous category of the judges that watch the investigation, following the European model, but with the modalities required in order to adapt the institution to our own legislation. This, with the additional advantage of alleviating the burden of the current criminal judges, removing the heavy task of intervening in the phase of administrative investigation of the Minister Public, with the purpose of authorizing the cited restrictive measures of freedom.
112. In addition to all the previous improvements, the judges in charge of the control of the preliminary stage of criminal proceedings that are part of the respective Judicial Branch, would establish a permanent and necessary collaboration relation between the organs in charge of implementing justice, which would prevent many inconvenient conflicts from emerging between both ambits, whose coordination is indispensable.
* Translated by Ingrid Berlanga Vasile.
** Emeritus researcher of the Legal Research Institute of the UNAM and of the National System of Researchers. Member of The National College.
1 Cfr. Piña Palacios, Javier, "Origen del Ministerio Público en México", Revista Mexicana de Justicia, vol. II, no. 1, January-March 1984, pp. 13-55; García Ramírez, Sergio, Curso de derecho procesal penal, México, Porrúa, 1974, pp. 199-203.
2 Cfr. Castillo Velasco, José María del, Apuntamientos para el estudio del derecho constitucional mexicano, 3rd edition, Mexico, 1883, pp. 195-198.
*** In Spanish "Procurador General de la República" [N. of the T.].
3 Cfr. Ruiz, Eduardo, Derecho constitucional mexicano, 2nd ed., Mexico, Tipografía de Aguilar e Hijos, 1902, pp. 331 and 332 (fax edition, México, UNAM, 1982); Coronado, Mariano, Elementos de derecho constitucional mexicano, 3rd ed., Librería de Ch. Bouret, 1906, pp. 189-197 (fax edition, México, UNAM, 1977).
4 In the same date and also in use of its extraordinary legislative powers (that were actually delegated), the statute of the Federal Judicial Power and the Criminal Procedure Federal Code were issued.
5 Cfr. According to the part regarding the preamble of this regulation: "One of the main purposes of this law is to define the special character granted to the institution of the Minister Public, disregarding the concept always reputed to it as an auxiliary of the justice administration. The Minister Public is the representative of the society before the tribunals, in order to claim the fulfillment of the law and the reestablishment of the social order when it had been torn. The means it exerts given its office consists in public action. It is, therefore, a party and not an auxiliary, in the legal sense of the word" (the italics are mine).
**** In Spanish "juez instructor" [N. of the T.].
6 Cfr. Fix-Zamudio, Héctor, La función constitucional del Ministerio Público. Tres ensayos y un epílogo, Mexico, UNAM, 2002, pp. 53-59 and 94-97.
+ In Spanish "policía judicial" [N. of the T.].
++ In Spanish "procurador general" [N. of the T.].
7 Ibidem, pp. 45-47.
8 Cfr. Chamber of Deputies, Derechos del pueblo mexicano. México a través de sus Constituciones, 4th ed., Mexico, 1994, v. III, pp. 999-1001.
9 Ibidem, pp. 1002-1021.
+++ In Spanish "policía judicial" [N. of the T.].
10 Ibidem, pp. 1009-1011. The text of article 21 was approved in the session of January 31, 1916, with 158 votes against 3, pp. 1020-1024.
11 Op. cit., note 8.
12 The cited reform of 1940, in the first paragraph of article 102 of the Federal Charter, was modified as follows: "The law shall organize the Minister Public of the Federation, whose officers shall be named and removed by the Executive in accordance with the respective law, being necessary to be presided by an Attorney General, who shall have the same qualifications required to be magistrate of the Supreme Court of Justice…" (the italics are mine).
13 Until recently, the laws of the federal states have followed almost literally the model of those of the Federal District, with secondary differences. About the criminal procedural families, I recommend viewing the exhaustive examination carried by Alcalá-Zamora y Castillo, Niceto, Sistema de derecho procesal, Mexico, UNAM, 1966, pp. 178 and 179.
14 This preeminent investigative activity was carried under the coordination of the guidelines of previous investigations that were established both in the Federal Attorney General’s Office as in the laws of the federal states.
15 This discusión was published under the title La misión constitucional del Procurador General de la República, 2nd ed., Mexico, 1963, with a documentation and excellent prologue made by Alfonso Noriega Cantú.
16 Ibidem, pp. 48-64.
++++ In Spanish amparo, which is the summary proceeding which serves to guarantee constitutional rights [N. of the T.].
17 Ibidem, p. 62.
18 Ibidem, pp. 82 and 83.
19 Ibidem, pp. 85-91.
20 Cfr. The panflet edited by the Chamber of Deputies of the Congress of the Union, Debate parlamentario. El Ministerio Público como parte del Poder Judicial, Mexico, 1977, pp. 55-30.
21 Cfr. Olea y Leyva, Teófilo and Ortiz Tirado, José María, El resarcimiento del daño a la víctima del delito, Mexico, 1944; Castro, Juventino V., El Ministerio Público en México. Ensayo de genética, problemática y sistemática del Ministerio Público, Mexico, 1941. This last book has been object of several editions with the title El Ministerio Público en México; funciones y disfunciones, 11th ed. corrected and augmented, Mexico, Porrúa, 1999.
22 "El artículo 21 constitucional", Criminalia, México, no. 2, 1945, pp. 96-107.
23 Principios de derecho procesal penal mexicano, 4th ed., México, Porrúa, 1967, pp. 50-52.
24 El procedimiento penal mexicano, 4th ed., México, Porrúa, 1957, pp. 47-50.
25 El procedimiento penal, 2nd ed., México, Porrúa, 1957, pp. 47-52.
26 "El juicio de amparo contra la indebida inercia del Ministerio Público", Criminalia, Mexico, 1963, pp. 294-323, reproduced as a panflet, Mexico, Comisión Nacional de Derechos Humanos, 1991.
27 Derecho mexicano de procedimientos penales, 2nd ed., Mexico, Porrúa, 1970, pp. 482-497.
28 Cfr. El Ministerio Público, la intervención de tercero en el procedimiento penal y la obligación de consignar según la Constitución, originally published in 1941, and reproduced as a panflet, Mexico, Comisión Nacional de Derechos Humanos, 1991.
29 El juicio de amparo, 11th ed., Mexico, Porrúa, 1977, pp. 457-482.
30 El monopolio del ejercicio de la acción penal del Ministerio Público, 2nd ed., Mexico, UNAM, 1993.
31 Cfr. Thesis 198 of the volume relative to the First Court in the Apéndice al Semanario Judicial de la Federación, published in 1975, with the title Ministerio Público. An excellent summary of the arguments expressed in the then compulsory jurisprudence, could be found in the article of García Ramírez, Sergio, "La acción en el proceso penal", Revista de la Facultad de Derecho de México, no. 65, January-March, 1967, pp. 151 and 152.
32 Cfr. Revista dela Facultad de Derecho de México, nos. 37-40, January-October, 1967, pp. 151 and 152.
33 Cfr. Revista dela Facultad de Derecho de México, nos. 65, January-March, 1967, pp. 133-178.
34 Cfr. "El Ministerio Público en la Constitución", in Rabasa, Emilio O. (ed.), Ochenta años de vida constitucional en México, Mexico, Cámara de Diputados del H. Congreso de la Unión, UNAM, Instituto de Investigaciones Jurídicas, 1998, pp. 431-454, especially p. 453.
35 Cfr. Fix-Zamudio, Héctor, op. cit., note 6, pp. 177-184.
36 Cfr. Casto, Juventino V., op. cit., note 21, pp. 53-93 and Castillo Soberanes, Miguel Ángel, op. cit., note 30, pp. 107-133.
° In Spanish "policía judicial" [N. of the T.].
37 Theses 469, 482 and 480 of the Apéndice del Semanario Judicial de la Federación published in 1989, vol. II of the theses common to the plenum and the courts, pp. 816, 836 and 832, respectively, essentially established: a) that the investigative police force was competent to receive the confessing proof of the accused; b) that the burden of the proof that his confession has been coerced, lied on the accused; and c) that according to the procedural immediacy and except for the legal precedence of the retractation of the first declarations of the accused produced without enough time of enlightenment or defensive reflections, they shall prevail over the subsequent ones.
38 Paragraph II, clause A of article 20 of the Constitution, in its current wording states: "(The accused) shall not be obliged to declare. Every deprivation of communication, intimidation or torture is forbidden and shall be punished by the criminal law. The confession rendered before any authority different to the Minister Public or judge, or before them without the presence of the defender, shall lack any probative value".
39 Cfr. García Ramírez, Sergio, "Desarrollo reciente del procedimiento penal mexicano", XII Mexican Congress of Procedural Law, Mexico, UNAM, 1993, pp. 285-297.
40 Cfr. García Ramírez, Sergio, "Bases constitucionales del Ministerio Público", Poder Judicial y Ministerio Público, México, Porrúa-UNAM, 1996, pp. 156-161; Ovalle Favela, José, "Artículo 16", Garantías constitucionales del proceso, 2nd ed., Mexico, Oxford University Press, 2002, pp. 307-315.
41 The mentioned clause XVIII of article 107 of the Constitution (about the guidelines for the trial regarding constitutional guarantees) previously stated: "The wardens of prisons and jailers that do not receive an authorized copy of the warrant for arrest of an accused person within the 62 hours appointed in article 19, counted since the moment this copy is at the judge’s disposition, shall call the attention about such issue once the deadline is reached, and if the certificate abovementioned is not received in the next 3 hours, they shall set the criminal suspect free.- The transgressors of the cited article and of this disposition shall be consigned immediately to the competent authority.- The authority or agent shall also be consigned, which once the apprehension was made did not put the accused at the disposition of his judge, within the following 24 hours.- If the detention is verified to be made out of the place where the judge dwells, the mentioned term shall be extended enough in order to travel the distance between that place and where the detention was made". The part regarding this precept which was incorporated to article 19 currently in force, is the following: "…The authority responsible of the establishment in which the criminal suspect is kept, that within the abovementioned term (72 hours to pronounce a decision about the so-called warrant for arrest, unless the term is extended as a petition of the accused) does not receive an authorized copy of the warrant for arrest or of the prorogation request, shall call the attention of the judge about such issue once the deadline is reached, and if he does not receive such certificate within the next 3 hours, he shall set the criminal suspect free".
°° In Spanish "juez instructor" [N. of the T.].
42 Cfr. Fix-Zamudio, Héctor, op. cit., note 6, p. 147 with updating in the respective information.
43 Cfr. Castillo Soberanes, Miguel Ángel, "El Ministerio Público en México. Su pasado y su futuro", Jurídica. Anuario de Derecho de la Universidad Iberoamericana, no. 26, 1996. This author considers that this term is still insufficient, if we take into account the necessity that the Minister Public can correctly fulfill the criminal action, p. 269.
44 Cfr. García Ramírez, Sergio, op. cit., note 1, p. 576, had proposed a constitutional reform, as it was effectively made, in order to authorize the warrant for arrest by the Minister Public in well founded cases, for a short period of time and submitted to the judicial authority’s confirmation. Ovalle Favela, José, op. cit., note 40, pp. 309-315.
°°° In Spanish "cuerpo del delito" [N. of the T.].
45 This term is called in Spanish "elementos del tipo penal" [N. of the T.]. The section regarding article 16 of the Constitution finally was written as follows: "Only the judicial authority may issue an order of apprehension, without proceeding any denounce, accusation or criminal complaint of a determined action the law judges as a crime, punished at least with a penalty that deprives a person of freedom and providing there is information that prove the elements that guarantee the criminal type and the possible responsibility of the criminal suspect…" (the italics are mine).
46 Cfr. Castro, Juventino V., op. cit., note 21, pp. 127-140; Castillo Soberanes, Miguel Ángel, op. cit., note 30; Fix-Zamudio, Héctor, op. cit., note 6, pp. 108-111.
47 Cfr. García Ramírez, Sergio, "El Ministerio Público y la reforma constitucional de 1994 (antecedentes, contexto y novedades)", Poder Judicial y Ministerio Público, Mexico, Porrúa-UNAM, 1996, pp. 228-236; Islas de González Mariscal, Olga, op. cit., note 34, p. 440, who asserts that the non-prosecution of the criminal action is not a faculty of the Minister Public included in article 21 of the Constitution.
¤ In Spanish "Tribunal Colegiado de Circuito" [N. of the T.].
48 Contradiction of theses of the three-judge circuit courts that was solved by the Supreme Court of Justice on August 26, 1997, and with the support of this criterion, it solved the merits of several trials regarding constitutional guarantees in October that same year, Seminario Judicial de la Federación y su Gaceta, 9th epoch, vol. VI, December 1997, pp. 21 and subsequents.
49 The last paragraph of article 102 of the Constitution, clause A, previous to the reform of December 1994 read: "The Attorney General shall be the government’s legal adviser. Both he and his agents shall be responsible of every fault or breach of the law they commit during the exercise of their functions" (the italics are mine).
50 About this institution, cfr. Guerrero, Omar, La Secretaría de Justicia y el Estado de derecho en México, Mexico, UNAM, 1996; Soberanes Fernández, José Luis, Memorias de la Secretaría de Justicia, Mexico, UNAM, 1997.
51 In Spanish "Fiscalía general" [N. of the T.]. Cfr. Moreno Hernández, Moisés, "Organización y funciones del Ministerio Público", Criminalia, México, September-December 1995, pp. 53-59.
¤¤ In Spanish "Consejería Jurídica del Gobierno Federal" [N. of the T.].
52 Article II clause 2 of Federal Constitution of the United States of America establishes that the President shall name the public officers of the Executive, when it is not disposed in a different way, with the Federal Senate’s advise and approval. Cfr. Hazard, John N., "The Role of the Minister Public in Civil Proceedings", Law in the United States of America and Technological Revolution, Brussels, 1974, pp. 209-226.
¤¤¤ In Spanish "defensoría de oficio" [N. of the T.].
53 Cfr. Cappelletti, Mauro and Garth, Brian, Acceso a la justicia, translated by Mónica Miranda, Mexico, FCE, 1966.
54 Cfr. Fix-Zamudio, Héctor, "Breves reflexiones sobre el asesoramiento jurídico y procesal como institución de seguridad social", Anuario Jurídico II, 1975, México, 1977, pp. 63-101.
¤¤¤¤ In Spanish "Diario Oficial de la Federación" [N. of the T.].
± In Spanish "defensores de oficio" [N. of the T.].
55 Cfr. Ovalle Favela, José, op. cit., note 40, pp. 306 and 307.
±± In Spanish "coadyuvante" [N. of the T.].
56 Cfr. García Ramírez, Sergio, El procedimiento penal en los estados de la República (los casos de Guerrero, Morelos y Tabasco), Mexico, UNAM, 1998.
±±± In Spanish "procuradurías" [N. of the T.].
57 Cfr. Verpraet, Georges, Le nouveau visage de la magistrature, Paris, 1965, pp. 53-70; Pradel, Jean, Procédure pénal, 5th edition, Paris, Cujas, 1990, pp. 102-112; Rassat, Michele-Laure, Procédure Pénale, Paris, PUF, 1990, pp. 200-213.
58 Cfr. Guarneri, Carlo, Pubblico Ministerio e sistema político, Padova, Cedam, 1984.
±±±± In Spanish "Ministerio Fiscal". There is no equivalent in English to this institution; but it is similar to the State Attorney’s General Office.
59 Cfr. Granados, Francisco, El Ministerio Fiscal (del presente al futuro), Madrid, Tecnos, 1989; Alamillo Canillas, Fernando, El Ministerio Fiscal español (su organización y funcionamiento), Madrid, Colex, 1990.
60 Cfr. Fix-Zamudio, Hector, op. cit., note 6, pp. 124-126.
61 Cfr. Coussirat, Jorge A., "El Ministerio Público en la reforma constitucional de 1994", in the work edited by the Argentinian Institute of Constititional and Political Studies, Derecho constitucional de la reforma de 1994, Buenos Aires-Mendoza, Depalma, vol. II, pp. 313-335; Bidart Campos, Germán J., Manual de la Constitución reformada, Buenos Aires, Ediar, 1997, vol. III, pp. 359-367; Vanossi, Jorge Reinaldo, El Ministerio Público según la reforma constitucional de 1994, edited by the National Academy of Law and Social Sciences of Buenos Aires, Buenos Aires, Lex, 1995.
62 Cfr. Fix-Zamudio, Héctor, "Reflexiones sobre el derecho constitucional procesal mexicano", Justicia constitucional, ombudsman y derechos humanos, 2nd ed., Mexico, Comisión Nacional de Derechos Humanos, 2001, pp. 365-376.
‡ In Spanish "Procuraduría Federal de la Supreme Corte de Justicia" [N. of the T.].
63 Besides the works cited in note 50, the collective work compiled by Guerrero, Omar could also be consulted. El papel de los ministerios de justicia en la reforma del Estado, Mexico, UNAM, 1998.
‡‡ In Spanish "abogacía de la nación" [N. of the T.].
64 Cfr. Islas de González Mariscal, Olga, "Reformas a la Constitución y al Código Penal de 1996", Reforma constitucional y penal de 1996, México, UNAM-Procuraduría General de Justicia del Distrito Federal, 1996, p. 96.
65 The sources are many, but we shall mention the most general works: Fix-Zamudio, Héctor, and Fix-Fierro, Héctor, El Consejo de la Judicatura, Mexico, UNAM, 1996; Fix-Zamudio, Héctor, Breves reflexiones sobre el Consejo de la Judicatura, Mexico, Poder Judicial de la Federación-Consejo de la Judicatura Federal, 1997; Melgar Adalid, Mario, El Consejo de la Judicatura Federal, 4th ed., Mexico, Porrúa, 2000.
66 Cfr. Cossío Díaz, José Ramón, Jurisdicción federal y carrera judicial en México, México, UNAM, 1996.
‡‡‡ In Spanish "jueces de instrucción" [N. of the T.].
‡‡‡‡ In Spanish "juzgadores" [N. of the T.].
• In this case, "juez de fondo" which is a judge who decides questions of law [N. of the T].
•• In Spanish "funcionario judicial de control". Along this article the term "policía judicial" has been translated as investigation police force [N. of the T.].
••• In Spanish "carabineros" [N. of the T.].
67 Cfr. Pizzorusso, A. et al., La Magistratura. Commentario della Constituzione. Art. 108-110, Bolonia-Roma, Zanichelli Editore-Il Foro Italiano, 1992, pp. 63-69.
68 Cfr. Association de Recherches Pénales Européennes (ARPE), directed by Mireille Delmas-Marty, Procesos penales de Europa (Alemania, Inglaterra y País de Gales, Bélgica, Francia e Italia), translated by Pablo Morenilla Allard, Madrid, Edijus, 2000, pp. 93 and 94.
69 Ibidem, pp. 222 and 223.
70 Ibidem, p. 347.
71 Ibidem, pp. 287-289; Van Rumbeke, Renaud, Le judge d’instruction, Paris, PUF, 1988.
•••• In Spanish "juez de control de instrucción" [N. of the T.].
72 This reforming tendency is noticed, being financed several times by international organizations or private foundations. Cfr. Comisión Andina de Juristas, Reforma judicial en la región andina, ¿Qué se ha hecho, dónde estamos, a dónde vamos?, Lima, 2000, chapter III, "La reforma procesal penal", pp. 149-210. About the Chilean judge in charge of the control of the preliminary stage of criminal proceedings (juez de control de la instrucción), pp. 160 and 161. Also can be consulted the various studies published in the review Sistemas judiciales. Una perspectiva integral sobre la administración de justicia, Santiago de Chile, Centro de Estudios de Justicia de las Américas, vol. 3, no. 3, August 2002.
# In Spanish "mandato de arraigo" [N. of the T.].