The legal dimension of local security in Mexico

Security is clearly a social phenomena. I mean, it is better studied from the perspective of sociology, than from any other science. The effects of lack of security have consequences in the daily lives of the people who are or feel unsafe.

Nevertheless, many other sciences can interact with the subject of security, to allow us to understand different critical aspects. In this case, I’m going to try to offer some insights and notions into the legal dimension of local security using the science of Law. These are very general notes, just to provide a brief glimpse.

Police, prevention and investigation

Unlike other countries, in Mexico police is usually not an investigative institution. This is not criticism, just fact. The legal faculties of most police corps in Mexico do not include investigation. In the Law they have no capabilities to open investigations or keep files and records of specific cases.

Most police forces have prevention objectives, following a foucaultian approach (as in Foucault’s book, Discipline and Punish). The strobe lights, the patrols, their noise, even the horses trotting on the cobble stones; it is all part of a methodology to deal with insecurity by establishing a constant presence in the streets and responding to emergencies.

But when a crime happens and no one was arrested red-handed, then the local police can’t do much, as the institution in charge of investigation is the public ministry and not the police. Hence, the police can only make some notes, take some pictures and write a report which might be of use for a future investigation by the competent authorities.

This is a big difference with other countries systems and the origin of many misunderstandings with the foreign community. To put it in a practical example: if one person goes back home and sees that burglars have entered and robbed all his possessions, of course calling police is important so that they can enter the home with you and verify there are no more criminals or risks inside the home. But that call doesn’t start any investigation or has any other consequence than maybe modifying some stats local governments keep. After things are safe, a criminal complaint needs to be filed on the public ministry if any type of investigation is expected from Mexican authorities.

By the way, in the case someone is arrested red-handed, then the police has the obligation to present the arrested person to the Public Ministry, so that they are the ones who investigate and present charges.

The public ministry

Investigation of crimes in Mexico fall under the public ministries (local or federal, depending of the type of crime). This are similar to District Attorney’s offices in United States, with their own criminal investigators, litigators and experts.

So while in United States and other foreign countries you would have a District Attorney’s office receiving proofs from local police and collaborating closely with police forces, in Mexico each Public Ministry has their own Criminal Investigators and receive almost no input from local police forces.

The Public Ministries are usually divided in General Agencies, Special Agencies, Litigation Areas and Investigation Services. Agencies are always led by one Agent and his or her assistants. Special Agencies deal with special crimes (for example, the Murder Agency or the Bilingual Agency). General Agencies deal with all the other crimes that special agencies don’t take. Litigation Areas are the offices of the actual lawyers who present cases to Criminal Judges (representing the state or the federation, as plaintiffs). Investigation Services is the section of the Public Ministry in charge of going out to the streets to do actual investigation.

On the type of crimes and if they are federal or local, the system is too complex to explain it in one article like this one. But an easy attempt to explain it could be: organized crime is a federal matter, everything else is almost always local.

State vs Federal responsibilities

Security is a State and Municipal affair according to our Constitution. The Federation is only supposed to deal with organized crime and help the states and municipalities with presence of federal police for prevention measures.

But the stronger budget of the federation, along with a lack of care by each state during the last 30 years, has resulted on a very centralized view of security in the whole nation. Most states and cities can’t fight insecurity without the help of federal forces or the military.

To make matters worse, security has become a political issue since Vicente Fox, who started the tradition of having a stronger federation presence in states and cities where his party won.

Judicial System

Criminal courts are divided also between federal and local courts, dealing each with the crimes that are specific to the federation or to the states.

But the Constitution states that for crimes that could be both federal and local (like a drug dealing murder), the local courts (and public ministries) are the ones with jurisdiction. This is the main reason on why the local criminal justice system is usually bigger than the federal one.

As with every other area of Law in Mexico, the Amparo Trial (our own Federal Constitutional Appeal, available to all people in the country for any acts of authorities) is a big part of our criminal justice system. Defendants with good lawyers will usually use Amparo strategies to shake off or at least slow criminal procedures against them. Also, final criminal sentences are usually always reviewed in Amparo.

What about legislation

The Constitution gives the right to each state to have their own criminal codes, as long as all states follow the same national criminal procedure code. This means that while crimes are defined by each state (except federal crimes, which are defined by the federation), the procedure is always defined by the Federal Legislators.

So each state has its own Criminal Code and there is also a Criminal Code for the Federation applicable to federal areas or federal subjects. Such areas can be anything like borders, airports, train or bus stations, etc. The federal subjects are mostly commerce activities, which are federal, organized crime and tax related crimes.

The problem with this is that the Criminal Code for the Federation is usually more complete and complex than the local codes, generating sometimes inequalities in victims. As an example, Federal Fraud is better defined than Guanajuato Fraud.

Important notions for change

Some notions which could be important for people who want to improve security by using the law:

  • While police is not an investigative agency, they are first respondents and if not trained correctly could affect the chain of custody of evidence for when the Public Ministry arrives. Training is very important, so that local police understands the legal procedures that arise from a crime and how they can help (and how they shouldn’t).
  • The Public Ministry is a social institution that only works when people actually use it. Filing criminal complaints (and promoting a culture of filing) is very important so that government can take action.
  • Lack of evidence is the biggest problem that Public Ministries face, so investing in cameras and recording equipment to get evidence is one way of making sure the public ministry can act if a crime happens in your own property. A similar approach could be good for municipalities and surveillance systems.
  • The security phenomena is affected by elections and such issue needs to be understood always when campaigns come. People need to be educated on this, so that they can assess their government better and not vote without understanding how that election affects security.
  • As the most important Criminal Judicial system is the local one and the less developed laws for defining crimes are also the local ones, a big effort needs to come from society so that the Local Congress updates their codes to make them more applicable to the local insecurity. If local crimes are not correctly defined, the work of the Public Ministry becomes impossible as defendants can use that to their advantage.
  • Increasing police (prevention) won’t have any impact on security if the investigation and prosecution of crimes is not also improved through the Public Ministries and the Judicial System.

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