Aligning Judicial Accountability in Mexico with International Standards

UN General Assembly (Presidencia de la República Mexicana; Flickr)

By Julio Manuel Rivera Ríos

“¡Todo mundo tiene su precio!” (“Everyone has his price!”) If you ask most people in Mexico about the judiciary, this is what you’ll hear. The prevalent opinion is that cash equals justice. Under these circumstances, we attorneys must heed the call to action. To that end, we need robust and efficient institutions to discourage and fight corruption, and we have the very particular duty of reestablishing and reinforcing people’s trust in our noble profession and in the judicial system.

Since 1994, the management, supervision and discipline of Judicial Power in Mexico, with the exception of the Supreme Court of Justice, have been entrusted to the Federal Judicial Council, but its performance has left much to be desired.

From May 13th-23rd, 2001, a Special Rapporteur from the United Nations Commission on Human Rights undertook a mission in Mexico after receiving several complaints, pointing out the impunity of judicial misconduct. As a result of the visit, an alarming report was presented, part of which is stated here:

From 1995 to 1999 the Disciplinary Commission of the Federal Judicial Council attended to 2,274 complaints, resulting in 327 sanctions of magistrates, judges or secretaries, ranging from warnings to dismissal (an average of seven sanctions per month).

The Special Rapporteur was given estimates of 50 to 70 per cent of all judges at the federal level being corrupt. However, no federal judge has ever been sanctioned for corruption by the Judicial Council.” [1]

Little has changed since then. The Federal Judicial Council has failed to investigate judicial corruption effectively, which has resulted in its disrepute. The reason is simple: the Federal Judicial Council is part of the Judicial Power, lacking impartiality and independence. Here is the big question. Who should supervise and investigate judicial misconduct?

The Council of Europe’s Recommendation on the Independence, Efficiency and Role of Judges has established the requirements for the judicial disciplinary mechanisms, including the existence of a special body other than a court:

“Where measures [on discipline] need to be taken, states should consider setting up, by law, a special competent body which has as its task to apply any disciplinary sanctions and measures, where they are not dealt with by a court . . . .” [2]

In addition, the European Charter on the statute for judges establishes the right of individuals to easily file a complaint against judicial misconduct before an independent body:

“5.3. Each individual must have the possibility of submitting without specific formality a complaint relating to the miscarriage of justice in a given case to an independent body.” [3]

Moreover, when the United Nations Human Rights Committee analyzed a judicial corruption case in Georgia, it stated that the investigation and supervision of judicial misconduct should be handled by an independent agency:

“The State party should also ensure that documented complaints of judicial corruption are investigated by an independent agency and that the appropriate disciplinary or penal measures are taken.” [4]

In light of the aforementioned, the Federal Judicial Council should be dissolved to make way for an autonomous, specialized, impartial, collegiate body with operational, budgeting and decision-making autonomy, in charge of the management, supervision and discipline of Judicial Power.

In conjunction, a law should be issued based on the international principles of judicial independence and accountability,[5] where the new entity would be responsible for implementation and enforcement. The purpose of this law would be to ensure that disciplinary proceedings for investigation and adjudication on complaints are fair, transparent and impartial.

It is my conviction that through a body with these characteristics, judicial accountability would have a good chance to succeed in Mexico. Disciplinary procedures would be conducted in accordance with requisite high standards, respecting procedural guarantees. There would be nowhere to conceal unethical behavior. The public confidence in the judicial system and, more importantly, in the integrity and moral authority of the judiciary, would be greatly restored. Constitutionalism and the rule of law would be upheld, while strengthening Mexican democracy.

 


* Julio Manuel Rivera Ríos is a 2017 L.LM. Candidate at Harvard Law School and a Feature Editor for the Harvard International Law Journal.

[1] Commission on Human Rights, Civil and Political Rights, Including Questions of: Independence of the Judiciary, Administration of Justice, Impunity. United Nations document E/CN.4/2002/72/Add.1, 24 January 2002.

[2] Council of Europe, Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges, 13 October 1994.

[3] Council of Europe, European Charter on the statute for judges, DAJ/DOC (98) 23, 10 July 1998. See also Concluding Observations of the Human Rights Committee on Georgia, United Nations document CCPR/CO/74/GEO, paragraph 12, 19 April 2012.

[4] Concluding Observations of the Human Rights Committee on Georgia, United Nations document CCPR/CO/74/GEO, 19 April 2012.

[5] See the Bangalore Principles of Judicial Conduct, adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices at The Hague, 2002. See also Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.