Legal process

The Mexican criminal law and system is different in several ways from the Canadian system. For a criminal offence punishable of more than 2 years of prison, the condemnation (called sentence here) must be given within the 12 months following the date of the crime. The process is defined in the Criminal procedure code of the state of Quintana Roo (CPPQR). Here is a summary:

The first stage is the previous investigation. It lasts 48 hours. At the end of this stage, the prosecutor decides if he has enough evidences to press charges. Beyond 48 hours, the detention of a suspect is regarded as not-necessary and excessive. This is the law, not necessarily the practice.

Then comes the pre-instruction stage. The court has 72 hours to decide legal statute of the defendant. Once the decision taken, the court has 48 hours to inform the defendant of his decision. At the end of this stage, a constitutional decision must be given. The defendant is informed of the evidences gathered against him and a formal imprisonment order is set. At that point, the defendant enters a plea of culpability. Contrary to Canada, there are no plea bargains, so no possibility to reduce the sentence on that account. On the morning of September 25, José Palacios Garza pleaded guilty and the formal imprisonment order was emitted.

The process then enters the instruction phase. During this phase, the prosecutor and defense respectively have 15 workable days to present additional evidences and request. The court has then 30 days to accept or refuse, and compile all the evidence. The process remains in at this stage and other evidences can be filed through various procedures. A court order closes this stage.

The process is currently at this stage. Afterward is the first instruction stage. The prosecutor and defense have a minimum of 5, and a maximum of 15 workable days to file their evidences and argumentative. At first the prosecutor, and then the defense who can answer to what the prosecutor put forward. In the 15 workable days following the deposit of these documents, a date for the trial must be fixed. Once the trial is finished, the court must emit a verdict and a final sentence in the 10 following workable days. If the defendant is found guilty, the decision must indicate its level of culpability and punishment.

The trial takes place in the judge’s office. All testimonies, evidences and conclusions are in writings and the only people present are the judge, the prosecutor, the lawyers and the defendant. The judge reads the documents in front of them. No verbal debate or argumentative is authorized. The judge then writes his decision and transmits it, in writings, to the parties.

In the 15 days following this decision, an appeal can be placed. This brings the process in the second instance stage. Following these two instances, the final stage is the execution of the sentence or the treatment of incapable person. A person is regarded as incapable if at the time of his actions, he or she did not understand their illegality.

The constitution of Mexico grants special rights to the offended. These rights allow offended to take an active and independent part in the legal process. However, article 39 of the CPPQR restricts these rights and excludes the independent participation of the offended. Everything must be done through the prosecutor. Although this article is unconstitutional, it was used in the present case. We challenge this article in a federal court to allow us to regain the constitutional rights guaranteed by the Constitution of Mexico, but ridiculed by Quintana Roo. This option is not realistic in our present situation.

In October, still in the beginning of the instruction stage, we presented evidences to the responsible person several time, getting refusal after refusal to put them in the case. He hid behind the 15 days of the instruction stage, despising procedures such the “coadyuvancia el ministerio publico” and the “superviniente”. On the basis of article 39, the judge refused our first request for coadyuvancia (procedure which makes it possible for our lawyer to enter of the evidences and to intervene in the case). We were informed of this decision taken at the end of December only when we got back to the island at the end of February. Finally, after 5 months of fighting with the Mexican authorities we got our constitutionally guaranteed rights respected, at least in part. Our second coadyuvancia was accepted. We were told it is standard procedure and in practice a judge never refuses it… except for us.

As of August 16, 2010, Jose Palacios Garza is still incarcerated in the small countryside prison of the police station of Isla Mujeres. The prisons were usually, only small offenders are kept. The prisons were 4 prisoners have escaped by making a hole in a wall, on August 24, 2009. Just a reminder, the island is cut from the continent from midnight to 5:30 a.m. Have a nice vacation ;)

All this is done with the sights and knowledge of the Canadian authorities who supposedly cannot do anything, quoting without any further details, the restrictions imposed by the Canadian foreign policy. This way of proceeding has become a constant through the case where by its inaction, the Canadian government, therefore the Canadian peoples, implicitly supports the questionable actions of the Mexican authorities.


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