CONTENT|CONTENU

The Mexican Criminal Law System

• Context
• Consular Services for Canadian Imprisoned in Mexico
• Application of the Mexican Legal Law System
  • Selecting a Lawyer
  • Mexican Arrest & Detention Procedures
  • The Mexican Criminal Trial
  • The Amparo
  • Duration of a Trial and Sentencing
  • Transfer to a Canadian Prison
• Additional Resources

Context

The Mexican and Canadian criminal law systems are significantly different. This reality, combined with the cultural and linguistic context in Mexico, can increase the stress and practical problems arising from arrest and imprisonment in this country. Canadian Consular representatives can provide you with assistance in dealing with these problems.

This document is intended to give you basic information on how the Mexican criminal law system functions. It is not a substitute for legal advice, which can only be provided by a lawyer qualified to practice in Mexico (see paragraph below Selecting a Lawyer). It should also be read in conjunction with the brochure “A Guide for Canadians Imprisoned Abroad”, available in Government of Canada offices abroad and from Canadian Consular representatives.  

Mexico initiated a comprehensive reform of its judicial system in 2008. However, full implementation of these reforms is expected to take several years. Accordingly, this document describes the Mexican criminal law system as it currently operates in early 2009.

Consular Services for Canadian Imprisoned in Mexico

Canadians who live, work, visit or do business in Mexico are subject to Mexican laws and legal procedures. The Government of Canada cannot interfere in the judicial affairs of Mexico or provide you with legal advice. A locally accredited lawyer is the only one authorized under Mexican law to represent you at court or in other legal proceedings.

The Canadian Embassy cannot extricate you from the Mexican legal system or the processes you face; nor can it insist on the substitution of Canadian legal processes in place of Mexican legal processes. The Canadian Embassy cannot either facilitate your departure from the country or assume any responsibility as a guarantor, surety or supervisor for your continued presence in Mexico as part of any request for parole or temporary period of restricted liberty. Visit the Consular Services Bureau website for more information on the services that consular officials can and cannot provide.

If you believe that your legal rights, including your human rights, have been violated under Mexican or international law, you should inform your lawyer. You should also bring your concerns to the attention of Canadian consular representatives. The Government of Canada will make every effort to ensure that you are not penalized for being a foreigner and that you receive equitable treatment under the local criminal justice system (i.e. that you are neither discriminated against nor denied justice because you are Canadian). The Government of Canada cannot, however, seek preferential treatment for you, nor try to exempt you from the due process of Mexican law.

If you are looking for information on whether there is an arrest warrant issued against you in Mexico, you should engage a Mexican lawyer to make such enquiries and act on your behalf within the Mexican justice system.  A Lawyer is qualified to provide such advice and answer questions on any concerns that arise in this respect.

Application of the Mexican Legal Law System

Selecting a Lawyer

Choosing a lawyer is an important decision as the quality of legal representation can have a significant impact on the outcome of your case. Consular officials can provide a list of lawyers with a wide variety of legal specializations and expertise, who may have represented Canadians in the past. Consular officials cannot, however, recommend specific lawyers. You may prefer to retain a lawyer who is not on the list. The choice is yours alone since it is important that you feel comfortable with and have confidence in your lawyer. Top quality lawyers in Mexico command high fees, as do first class lawyers in any country, including Canada.

You should be cautious about hiring lawyers who initially approach you in jail, or lawyers who are recommended by another prisoner or a prison official. Also, be cautious of any lawyer who promises to have you released quickly in exchange for a large sum of money, particularly if they imply that the money is to pay bribes. The promise may not be fulfilled and you may lose your money. Bribes are illegal under Mexican law.

If you wish to be represented, but do not want or cannot afford the services of a private lawyer, you may request the services of a public defender. Past experiences show that public defenders are usually very busy and unable to devote significant time to any individual case. They often have limited English language skills and even more limited French skills. In order not to delay procedures, a public defender will be assigned to your case if no private lawyer appears on your behalf within a reasonable time limit. What is a “reasonable time limit” will vary from case to case.

If you retain the services of a private lawyer, you should insist on having a written contract specifying exactly what he or she is expected to do and how much is to be paid for the legal services they will provide. Be concerned if a lawyer refuses to enter into a written contract with you. Most lawyers will request a retainer, or large deposit, in advance of providing services. It is, however, in your interest to negotiate the conditions of the contract so that full payment is not due until your case has been fully completed. You may also wish to negotiate a contract that sets out the specific amounts payable as significant milestones or objectives are achieved over the course of your case.

You should inform your family, or other interested parties, of your lawyer’s full name and address, and the details of your contract. This will ensure that everyone is aware of the arrangements you made with your lawyer and that you are protected if your family or friends are being asked for additional money without your knowledge.

Mexican Arrest & Detention Procedures

An arrest can be made by local, state or federal police.

Under Mexican law, you may be arrested and detained when the police believe there is sufficient evidence against you to justify detention and/or criminal charges. This means that a person can, in practice, be detained until the judicial process runs its course and you are found guilty or not guilty.

During questioning by judicial authorities, a person who does not understand Spanish is entitled, under the Mexican Constitution, to be assisted by an interpreter certified by the Mexican Government. The person is also entitled to an oral translation of any statement he is required to sign. While certified Spanish-English interpreters are commonly available, their competence in their second language can vary greatly. Competent certified Spanish-French translators can be even more difficult to find, especially on short notice.

Under Mexican law, an accused does not have to testify or answer questions from the authorities that can be incriminating. An accused should, however, answer questions related to identity, age, address, occupation, citizenship and other non-incriminating personal information. When the accused person is initially held by the police, he may feel pressured to speak before having the opportunity to communicate with a lawyer. The accused is not required to comply with such pressure and has the right to remain silent. Insist on speaking with a lawyer before answering questions or signing any document if you face such a situation.

In the Mexican Criminal Law system, there are State and Federal offenses. Offenses related to organized crime, drug trafficking, taxes, and customs operations are normally federal offenses. The accused will be turned over to the federal police if an arrest is related to a federal crime.

The Mexican authorities have an obligation, under the Vienna Convention on Consular Relations, to inform you of your right to have the Canadian authorities notified of your arrest or detention. They are also required to forward any communication you address to the consular post. Unless you request it, the Mexican authorities are not obligated to inform a Canadian diplomatic or consular office of your detention or arrest.  Under the Convention you also have the right to communicate with, and have access to, a consular officer, but these rights must be exercised in conformity with the laws and regulations of Mexico.  Please inform the consular officer if the Mexican authorities have not informed you of your right to request that Canadian officials be advised of your arrest or detention, or if you have been denied the right to communicate with, or have access to, a Canadian consular officer.

Following the arrest, the police make an initial determination as to whether a crime has occurred and whether there are grounds to believe that the suspect is the person who committed the crime. At this point, the police take the suspect before the Ministerio Publico (more or less equivalent to the Crown Prosecutor in Canada).

The Ministerio Publico conducts a preliminary investigation to determine whether the case should be prosecuted. If the Ministerio Publico decides to proceed with prosecution, the case will be turned over to a judge. The Ministerio Publico has 48 hours (90 days in some cases related to organized crime) from the time they receive the case to make this determination. If the Ministerio Publico does not make such a determination in that time frame, the suspect should be released. While in some cases, the 48 hour period may be extended, you should inform your lawyer and consular representatives if you believe that the time limit for the preliminary investigation by the Ministerio Publico has not been respected.   

Once the Ministerio Publico makes the determination that prosecution should take place, the suspect is presented before a judge. The judge then has 72 hours to decide whether the suspect should be tried or released. If the judge decides that a trial should be held, the judge will confirm the accusation with a detention order (auto formal prision). In some cases, the 72 hour period may be extended. The trial officially begins when the detention order is issued. An arrest warrant (orden de aprehension) is issued by the judge if the accused has not been detained.

Bail is not common in the Mexican legal system. It is not available for people accused of serious crimes, and often not granted in other cases, especially where a long prison sentence is anticipated. In cases where a foreigner is involved, because of the increased risk of flight, bail (if issued) may be for a higher amount than for Mexican nationals. Bail based on personal recognizance is not permitted.

The Mexican Criminal Trial

Trials in Mexico tend to take longer and differ in many aspects from trials in Canada. The main distinctive characteristics include:

a) Absence of live testimony: a trial is done in writing and not orally as in Canada. Witnesses’ testimonies are presented to the judge, or his representative, in the form of written statements.

b) Several “hearings”: The trial does not occur in one or two sittings but is split into many sessions.

c) No live argument: Lawyers on both sides present their arguments to the judge in writing.

d) No jury: The judge tries the case alone based on the briefs presented to him, without the assistance of a jury.

e) No court room: The actual physical conduct of the sessions usually involves the accused watching from a protected area while the lawyers and the court’s officials huddle around a typewriter or a computer, often for hours at a time. Indeed, there is no courtroom – rather it is an office space adjacent to the detention center. During these sessions, the arguments and witnesses testimonies are presented and written down as agreed. The judge does not actively participate in these hearings unless a serious dispute arises. There is virtually no direct contact with witnesses or interested parties in the courtroom, except in cases of rape where the victim may be asked to identify the aggressor from a line up of suspects.

Foreigners are entitled to have court documents translated. Delays can be expected when translations are requested.

The Amparo

The amparo is a procedural feature of the Mexican judicial process, roughly equivalent to a procedural motion of objection in Canada’s legal system. Its intent is to protect the accused’s rights under the Mexican Constitution. At any point during the trial, your lawyer may propose filing an amparo if he considers that your rights are not being respected.

There are two types of amparo. The first is filed during the initial trial (“first instance”) which is usually related to a technicality and very seldom leads to the release of the prisoner. The second type of amparo is filed after the first appeal and is based on the sentence. It could result in the release of the accused or a reduction of sentence if successful or, if unsuccessful, in a confirmation of the sentence.

When an amparo is filed, a federal judge (a different federal judge if the case is already federal) has to rule on it, with the practical consequence that the trial could be delayed. If the judge upholds the amparo, there are several possible results. The accused may be released and the charges against him dropped; the accused may be directed to face a new trial on amended, usually lesser, charges; or, finally, the amparo could be upheld but the judge could rule that the trial will resume (i.e. in cases where the amparo is based on a minor technicality, where the judge agrees that there was an irregularity but feels that the trial should continue regardless). The most common outcome, even if the amparo is upheld, is that the trial continues. If the judge rules against the amparo, the trial will resume. Generally, an amparo takes 2 to 6 months to be heard and resolved.

It is important that you ask your lawyer to explain the amparo to help you understand whether it would be useful or not in your trial, the additional time involved in resolving your case and how it would impact on your legal fees before you decide to go ahead.

Duration of a Trial and Sentencing

Generally, a verdict is handed down 15 working days after the accused has been brought before the judge for a final meeting (Audiencia de sentencia or Audiencia de vista).

When the maximum possible sentence is less than two years, the judge has up to four months to reach a verdict. When the maximum possible sentence is more than two years, the judge has up to one year to reach a verdict. Nevertheless, there are several factors that can impact on the duration of a trial and result in a timeframe in excess of the prescribed time limits. Amparo proceedings, translation and changes in legal representation can all create delays. Likewise, delays can occur when witnesses do not appear after being subpoenaed; in general judges will give up to three opportunities for a witness to appear but these could be months apart. Should your case pass the prescribed limit, you can ask your consular representative to clarify the procedure with the judge.

If a verdict results in a prison sentence, the time the accused has already spent in prison counts toward the fulfillment of the sentence. The accused, as well as the prosecutor, have the right to appeal the sentence, usually within five working days.

Transfer to a Canadian Prison

Canada has a Transfer of Offender Treaty with Mexico that enables Canadians convicted of offences in Mexico to serve their prison sentence in a Canadian penal institution if both the Canadian and Mexican governments consent to the transfer. Transfers are not automatically granted. Even if your request is approved by the Mexican authorities, you still need to obtain the approval of the Canadian Minister of Public Safety who has the discretion to refuse a transfer if he is not satisfied that it is consistent with objectives and goals set out under Canada’s International Transfer of Offenders Act.

While Canadian consular officials can provide you with the documents necessary to apply for a transfer, only you can make the actual request once certain conditions have been met (i.e. you have been convicted and sentenced to a term of imprisonment, all appeals have been exhausted or the time for appeal has expired, at least six months remains on your sentence at the time the request for transfer is submitted, and all monetary fines or reparation of damages are paid). The process normally takes at least one year.

Should you have any further questions, please do not hesitate to ask your consular representatives. For more information on travel to Mexico, see the Consular Services Bureau’s Travel Report.

Additional Resources

• A Guide for Canadians Imprisoned abroad
• Bon Voyage But…Essential Information for Canadian Travellers
• Travel Report for Mexico
• Website of the Canadian Embassy in Mexico

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