Criminal Cases/Cross Border US-Mexico

Please find a little briefing in general terms about the Mexican Judicial system and what tourists should know on this matter, so I think it should be useful to you. I also took in consideration ethical rules that I work under, such as professional rules of the Supreme Court of Arizona and the State Bar in which I am an affiliate as a Foreign Legal Consultant. My objective in this issue is to be informative in the matter I am considered an expert.

As I said before, due to the regulations applicable to me, I can only provide general information on the matter about what everyone who is a non-Mexican should do in the event they would be arrested.

First of all, let me tell you that although many people may think that these kind of issues in Mexico could be terminated once you pay the fine, or that in Mexico the use of bribery is common, that is not the legal way to solve any legal issue and of course I would not recommend it because it is a major crime, both federal and in most state.

What I am trying to say is, although unfortunately these kind of practices exist and are a source in many legal systems in the world, and of course Mexico is not an exception, I would extremely recommend taking the legal way to solve any issue in Mexico because as an Attorney at law licensed to practice in Mexico and also licensed to practice as a Foreign Legal Consultant in Arizona, I am very confident that the Mexican legal system improves every day because although it is complex as well as the US legal system, and the criminal law and process has changed a lot, any method of illegal strategies to solve a problem will only worsen the case.

Now, although the Mexican constitution has changed in 2008 regarding the criminal process, to establish oral trials in Mexico and move forward into the new process in which many changes must be done, to allow a new system in which both parts, prosecutor and defendant, have a real balance and transparency while the process is running, in fact, the real way in which the cases have been processed is not the ideal one.

You need a real defense lawyer in that. The criminal legislation has changed at all.

The most important thing that I have to introduce to you should be that since the middle of 2011, the Mexican constitution has changed in its first article 1 and others to allow everyone to be protected under the vast constitutional rights but also under the human rights treaties that the Mexican legal system has allowed or has been part of.

That means that the Mexican legal system has given a jump into a new era of legislation to introduce new rights which are already in those conventions to take advantage of Mexican regulation, almost at a constitutional level. Also let me tell you that the Ley de Amparo, as the most important source or trial to be protected under Mexican constitution, has changed too.

It is important to remark what the fundamental law says around the topic, letting you know that the Constitutional article 14 says that, no law shall be enforced ex post facto in the detriment of any person. No one shall be deprived of their freedom, properties, possessions or rights without a fair trial before previously established courts, according to the essential formalities of the proceedings and laws issued beforehand. In criminal trials it is forbidden to impose, by mere analogy or reasonable belief, any penalty which is not expressly set forth in a law applicable in every respect to the crime in question. Now, on the rights of the defendant, the article 20 Constitutional, part B declares what it is applicable to.

What I would recommend to my clients or someone in the event being arrested, shall be establishing an adequate defense to someone in this situation as the key to release or ensure their rights when they have confessed to their crime, regarding the charges they face, should be to act as soon as possible, hiring a private lawyer or taking advantage of the right to be represented by a public defendant with no cost to the defendant, and also by processing the juicio de amparo to ensure they will be protected by human rights and the constitution, and also getting the consular assistance they deserve by law, to speed the prosecutor’s decision to press or not to press charges against them, and of course to allow them and their lawyer to provide all evidence in their favor.

Also, to ensure the defendant rights, you will find in the article number 20 of the Mexican constitution, such as the defendant shall be considered presumed innocent until his responsibility is declared by a sentence delivered by a Judge; the right to declare or remain silent, to not be denied communication, get proper consular assistance, a translator in the event she is not able to speak Spanish, that all evidence obtained by violating the fundamental rights shall be null and void, and all the additional rights that the Mexican constitution and federal law gives to her to be defended.

Now, about the specific rights of foreign nationality, let me tell you that citing a recent case in Mexico, The Supreme Court of Justice of the SCJN, in estimating to respect their right to communicate with the Consulate of his country,  and in order to be able to exercise the rights of due process and proper defense recognized by international and national law, courts must follow this:

The fundamental right cited, contained in the first paragraph of Article 36 of the Vienna Convention on Consular Relations, may take various forms, depending on the particular circumstances of each case. However, their intervention involves at least three basic actions, namely: (1) of a humanitarian nature, since consular officials provide detainees with contact with the outside world, by communicating the news to their relatives or to persons they trust and ensuring that their basic needs are met while they are deprived of their liberty,  (2) protection, since the presence of consular officers, in itself, helps to deter local authorities from committing acts against aliens which may be contrary to their human dignity or which endanger the fate of the criminal proceedings to which they will be subjected; and, 3) that relating to technical-legal assistance, since consular assistance is vital to ensure an adequate defense in situations involving deprivation of liberty, where violations of the fundamental rights of aliens are common due to the lack of knowledge of the legal system in which they are immersed.

This is so, since a foreign person who is detained, faces a multitude of linguistic, cultural and conceptual barriers that hinder his ability to understand, fully and completely, the rights that assist him, and the situation he faces. Thus, through consular assistance, foreigners reduce the distance that separates them from nationals in terms of the protection of a minimum standard of fundamental rights.

Thank you so much for the opportunity to be there and hopefully I may serve you in your case.