Discussions are underway in Mexico regarding the new “Fiscalía General de la República” (FGR) that will eventually replace the current Attorney General’s Office (Procuraduría General de la República, PGR) and investigate and prosecute federal crimes in Mexico. Organizations, academics, entrepreneurs, artists, and other members of civil society have launched the social media campaign “For a Fiscalía That Works,” demanding a public dialogue on this transition.
In 2014, the Mexican Constitution was amended to create the Fiscalía due to the PGR’s lack of independence and results, and to ensure that the new criminal justice system, after eight years of reform, becomes a reality in the country. The Mexican Congress has yet to carry out a number of legislative actions for the Fiscalía to formally exist.
In particular, Congress must make a fundamental decision to either: 1) create a new Fiscalía “from scratch” and appoint an independent and appropriately suited head, or Fiscal, and a team capable of carrying out serious and honest investigations; or 2) automatically transfer the current Attorney General and all of the PGR’s personnel to the new Fiscalía, and thus carry over to the new institution the vices and bad practices that have led to the collapse of Mexico’s criminal justice system.
The decisions made by the President and Congress about the Fiscalía will affect millions of victims of crime in Mexico. They will also have consequences in the investigation of cases of disappearances, torture, crimes against migrants, organized crime, as well as citizens’ confidence in reporting crimes and their trust in the results of the investigations.
WOLA urges Mexican authorities to initiate a serious dialogue with civil society about the kind of Fiscalía that Mexico needs—a Fiscalía that works to reduce the levels of violence and crime in Mexico and to ensure justice for victims of crime.
Below are three fundamental aspects to consider regarding the Fiscalía in Mexico:
The Fiscalía was created primarily for the following reasons:
• Lack of independence to investigate crimes: Currently in Mexico the Attorney General’s Office (PGR) is part of the executive branch. In practice, there is significant political influence over the PGR, allowing criminal investigations and prosecutions to be politically manipulated, which, in turn, does not ensure that investigations reduce crime or guarantee justice.
Under the reform, the Fiscalía will be an autonomous body with the authority and independence to investigate federal crimes in Mexico. The transition to a Fiscalía will mean that the office will no longer be under the President’s authority or that of any other government office. The Senate will have a dominant role in appointing and removing the head of the Fiscalía and other senior officials in the office, including the newly established special prosecutor to combat corruption.
• Lack of results and little accountability in the PGR: WOLA has previously identified weaknesses in the PGR, including a backlog of cases, overburdened staff, and the lack of scientific and professional investigations.
Reports by the Inter-American Commission on Human Rights, the UN Special Rapporteur on Torture, and other UN agencies have documented the participation of Mexican investigators in human rights violations during criminal investigations, especially the torture of alleged suspects in order to coerce confessions. Mexico’s National Human Rights Commission (Comisión Nacional de los Derechos Humanos, CNDH) has issued at least 222 recommendations to the PGR for violating human rights during criminal investigations.
There is little transparency regarding the results of the PGR’s investigations. In various freedom-of-information requests submitted by WOLA, the PGR has acknowledged that it does not keep records on how many of its cases end in convictions or acquittals.
There is also little accountability within the PGR. For example, PGR officials identified as participating in the obstruction of justice in high profile cases, such as the enforced disappearance of 43 Ayotzinapa students, have not been adequately investigated or sanctioned.
• Implementation of the new criminal justice system: Under the new criminal justice system, the Fiscalía has the authority to make important decisions on criminal policy in the country. For example, the decision to not investigate a case or to temporarily file it. The Fiscalía can also help eliminate bad practices, such as a backlog of cases and the investigation of the same case by different offices within the same institution (fragmentation of investigations).
The new criminal justice system requires an independent Fiscal, capable of exercising his/her power responsibly, resisting pressure from political actors, generating trust among citizens, and following a path of truth and legality.
On February 10, 2014, the Mexican Congress amended Mexico’s Constitution to create the Fiscalía as an autonomous body in charge of investigating and prosecuting federal crimes in the country. The head of the Fiscalía will hold office for nine years.
For the Fiscalía to officially exist, Congress must issue a decree acknowledging that the Fiscalía is an autonomous body and also issue the organic law for the Fiscalía (a law that establishes how the Fiscalía will function). Until this is done, the PGR will continue to be in charge of investigating federal crimes in Mexico.
There are currently several bills regarding the Fiscalía in Mexico’s Congress but none of them have passed.
• Mexican lawmakers must review and revise the 2014 constitutional reform that created the Fiscalía. It must be ensured that the head, personnel, and structure of the Fiscalía allow for serious and credible criminal investigations in Mexico. Lawmakers should involve civil society in these discussions.
• Mexico’s President and Senate must appoint an independent Fiscal that is appropriately qualified for the position. The sixteenth transitory article of the constitutional amendment that created the Fiscalía must be modified to prevent the last Attorney General appointed by President Peña Nieto from automatically becoming the first head of the Fiscalía in Mexico. If this article is not modified, the automatic transfer of the head of the PGR to the Fiscalía would allow for the political manipulation of the first Fiscal and prevent him/her from being genuinely independent.
• Current PGR officials should not be automatically transferred to the Fiscalía. The nineteenth transitory article of the constitutional amendment that created the Fiscalía must be reformed so that all staff entering the Fiscalía pass entrance examinations. Fiscalía officials should be selected based on their professional skills; anyone who may have participated in human rights violations, corruption, or the obstruction of justice should be excluded from working in the Fiscalía.
• The transfer of cases to the Fiscalía requires careful planning. Sending cases to the Fiscalía should be gradual, efficient, and orderly. Throughout the transition process, authorities should avoid backlogs and fostering poor investigative practices.