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International Law Part Three: Adversarial System in Mexico and Latin America

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Osorio_FrankWritten by guest blogger: Frank Suriel Osorio Hernández

Over the last twenty-five years, the penal judicial system in Latin America has undergone an almost complete transformation in all areas, including the discovery process and in litigation at the trial level; such reform is almost complete. Most of Latin America received its judicial system from the Spanish influence, which had, at its core, the inquisitorial system developed in the Middle Ages. Many of the legal principles that were established during colonial times more than 300 years ago are still quite evident to this day. These principles, which were originally part of the Catholic Church, became part of both the legal and the judicial systems. This Spanish system has been the most authoritative, and the most rigid, of all the procedural systems in Latin America.

The classic mixed procedural system that was developed from the French Revolution was adopted by most of Latin America, after each respective country declared its independence and became a sovereign state. The classic mixed system was intended to create a bridge between the adversarial system and the inquisitorial system, with procedures found in both legal systems.

The classic mixed code was borne out of the Napoleonic Code, the French Criminal Code, and the French Revolution. These three events gave birth to a new legal and judicial system that would seek as its purpose a compromise between the inquisitorial system and an adversarial system. This system achieved this goal by creating legal process that consisted of two main areas: 1) a stage of investigation or inquiry and 2) a stage of due process.

In an effort to obtain uniformity, the inquiry process was codified. Although investigation and inquiry were part of the new legal process and the judicial system, these codes were also rigid because the inquiry and investigation by the state were kept private, with little to no possibility to build a defense. Again, the focus was on enforcing the law, finding the criminals, and bringing about a quick punishment, with the same rules being applied equally. Currently, Latin America, and specifically Mexico, is changing its legal system; the idea of due process is the hope of the criminal procedure and the judicial system. When a case goes to trial, the goals of the entire legal system must be that the process would ensure the right of defense of the accused and that crimes would be prosecuted. The system would, hopefully, be able to guarantee both the right to punish one side and the right of “jus libertatis,” which is the right to defense of the accused on the other.

Fortunately, there has been significant steps through Latin America to reform its criminal process. For example, the first phase of reforms (First Generation) was the Code of Cordoba Argentina in 1970. Other major changes include Costa Rica in 1973, which came into force in 1975, known as First Generation Code and adopted the oral proceedings as a part of its procedure. The second phase is termed as Second Generation Code, which are the most current codes in Latin America. These were influenced by the project that generated the Iberoamerican Institute of Procedural Law, the Criminal Procedure Code model for Latin America, in the nineties. Finally, the most recent generation of change in codes has been in the governments of Chile, Colombia, and Mexico. In particular, Mexico, since 2008, has reformed thirteen criminal procedural state codes, and the deadline for the thirty-one states and the federal district to enact reform is 2016.

This process of change has been challenging for Latin America, but it is taking on the challenge and giving the task importance it deserves. Although we are not experts in the field of creating a perfect procedure, Mexico is trying to create a unique criminal system and is learning from other Latin American countries, Europe, and common law countries.

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