Pre-instruction is the formal stage when a District Judge is notified of a Criminal Matter and when the Criminal action, initiated by the Public Ministry, all the evidence and the accused are presented before him or her. Also, the suspect is informed about which charges have been set against him, all the facts that support the accusation and which person(s) gave a statement against him or her. This is also the moment when he or she is given the choice to provide preliminary statements or remain silent before the tribunal, appointed by his or her counsel and is given the opportunity to offer probes for his or her defence in order to avoid the Criminal Trial.
Upon being notified of the case, the Judge will be given 70 hours to decide if the evidence offered by the Public Ministry is sufficient in order to start a trial. If, however, the accused asks for a duplicated term in order to offer evidence disprove his or her criminal responsibility, his or her legal situation has to be decided in a term no longer than 144 hours.
This type of resolution is called Auto de Término Constitucional or Constitutional Term Determination and three are the possible outcomes: a) Auto de Formal Prisión or Formal Imprisonment Determination, which means that the accused has to follow his or her trial while in custody; b) Auto de Sujeción a Proceso or Holding Process Determination, which means that the accused has to follow a Criminal trial but he or she will not be in custody until a decision is made regarding his or her case; and c) Auto de Libertad por falta de elementos para procesar or Release Determination, which means that the suspect has to be released because the Public Ministry could not support his or her Criminal action; however this determination is not definitive because the prosecutor is permitted to obtain additional evidence and present his or her case again. In a case where the Tribunal finds sufficient grounds to start a Criminal trial, it has to announce its decision as a Constitutional Term Determination.
The instruction stage begins when the Formal Imprisonment Determination is communicated to the accused. The goal of this Stage is to investigate and prove if a criminal offence was committed, its circumstances and if the accused is criminally responsible or not. There are two different kinds of trials: Summary and Ordinary Trials. In the first case, Instruction cannot be longer than 3 months; and in the second case, no longer than 10 months. A Summary trial will take place under at least one of these circumstances: a) When the imprisonment term is not longer than 2 years or the criminal offence is awarded an alternate penalty; b) If the accused was caught in a flagrant action; c) If the accused gave his or her confession before a Public Ministry agent or Court; or d) if the minimum and maximum penalty of a criminal offence divided by 2 is less than 5 years.
According to Article 20 of the Political Constitution, the accused is allowed to offer as many exhibits as he or she wants, as long as they are not against law, irrelevant or inconvenient, according to the judgment of Court. The most common and important are listed by the Federal Criminal Procedures Code: a) Confession before Public Ministry or Judge; b) Inspection (Crime Scene and people or evidence related with a Criminal Act); c) Witness statements; d) Experts’ opinions; e) Documents, Photographs, etc.
Once all the exhibits offered by the prosecutor and defendant are presented, the Court then must provide a 10 day period during which both parties have a chance to offer new evidence to support their affirmations. If either party takes this opportunity, a public hearing must be scheduled within fifteen days. The Instruction Stage will not terminate until all exhibits have been presented and the terms to offer them are concluded.
After the Instruction Stage, the Court must provide a 10-day term to the prosecutor in order for him or her to write his or her conclusions. This is the formal act when the Public Ministry defines the accusation and asks for the appropriate punishment. The defendant will be granted an equal term to respond to the prosecutor’s accusation and give arguments about his or her particular position. Once both parties have given their conclusions, the Court will schedule a final hearing within the next 5 days, when both parties will be allowed to give their final allegations. Following that, the trail will be declared concluded by the Judge.
The decision stage is when the Court dictates a definitive resolutionand the defendant and the prosecutor are notified. This final resolution has to be on paper and must include: a) the place where it was dictated; b) the Court that dictated it; c) Defendant’s full name, place of birth, nationality, age, marital status, ethnic group, language, place of residency or address, education and occupation; c) a brief summary of all the facts revealed in the file; d) legal considerations and motivations; and e) the final decision whether to convict or release the defendant. If any party, prosecutor or defendant, are not in agreement with the definitive decision, both have the right to start an Appeal procedure. In this case, they must notify the Court about their decision within five days.
Under federal jurisdiction are those criminal offences described by approximately 47 federal laws, International Treaties and the Federal Criminal Code. Though, several acts, for example, homicide, are described as criminal offences by both Federal and State regulations, rules have been established to determine whether a specific case falls under Federal Jurisdiction and which authority will be legally responsible for a Criminal matter.
Federal authorities are allowed to process and punish a criminal act if it falls under at least one of these circumstances: a) is done in a foreign nation by a Mexican diplomatic, consul or member of a Mexican diplomatic delegation; b) is done in Foreign Embassies or Foreign delegations on Mexican soil; c) if Mexico is the victim, or in other words, if a criminal act is performed against the patrimony of Mexico as a Federation; d) is done by a public or federal agent as result of his or her activity; e) if the victim is a public or federal agent on duty, f) if it is against or is affects any federal public service or its facilities; g) if it is done against a political party agent or member or electoral agent; or h) in the case of a kidnapping if the intention was to take a child out of Mexico.
According to the Mexican Constitution, the Public Ministry or public prosecutor is the only institution that shall be in charge of investigating and prosecuting criminal activities and command the law enforcement agencies in charge of criminal investigations. The Public Ministry is led by an Attorney General, who is designated by the President and authorized by the Senate. This means that criminal investigations are under the Executive power, which is a civilian authority.
The Public Ministry, as Social Representative, has a double function in Criminal Matters; first, when a case is in the investigation stage or Averiguación Previa, this institution is who leads each activity in order to obtain all the facts, evidences and statements related to the criminal situation. Secondly, it has the capacity to release suspects or keep them in custody (no more than 48 hours in regular cases and 96 hours in cases related to organized crime) until they are sent before a Judge. It is during this stage when the public prosecutor must obtain as much information as possible in order to determinate if a Criminal Action should be taken or not.
On the other hand, in Canada investigation duties and prosecution attributions are not under the same agency or institution. Also, prosecution could be carried out by a Public or Private Prosecutor.
According to Article 20 of the General Constitution, the defendant has the privilege to be released provisionally on bail by the Public Ministry during the investigation stage or by the Judge during trial stage; however, such a benefit shall not be granted when the offence is a grievous or serious act. According to Article 194 of the Federal Criminal Procedures Code, a grievous offence is one which seriously affects the fundamental values of society, such as: a) homicide in some cases; b) high treason; c) espionage; d) terrorism; e) sabotage or piracy; f) genocide; h) and offences related to illegal trafficking or production of prohibited substances or drugs; etc
When the investigation reveals that a criminal offence was committed and probable wrongdoing by the accused is proven, the case shall appear before a Criminal Court. There, the role of Public Ministry is changes and is acknowledged only as a prosecutor in order to prove the charges against the suspect.
As is mentioned above, In Canada, each province is in charge of the administration of criminal matters; hence, there are different territorial jurisdictions, but one unit of criteria and procedures. For example, in Ontario, criminal procedures could occur before the Ontario Court of Justice which is presided over by a judge sitting alone, or before the Superior Court of Justice headed by a judge by himself or sitting with a jury.
In general, a criminal process in Canada is divided into seven stages: 1) Pre-Arrest Investigation, which includes police investigation; 2) Initiation of Criminal Procedures by swearing of information or execution of a warrant to arrest by police; 3) Judicial Interim Release; 4) Proceedings before Trial, such as initial court attendances; 5) Trial, when the accused is arraigned and will enter a plea at his trial. After a plea of not guilty, the trail will proceed to a verdict of guilty or not guilty; 6) Sentencing; and 7) Appeal.
In Mexico, federal trials for criminal offences appear before a District Court, which is presided by a Judge and is comprised of four stages: 1) Pre-instruction; 2) Instruction, 3) Final arguments and Conclusions; and 4) Judgment or Decision. Also, according to the first paragraph of Article 4 of the Federal Criminal Procedures Code, procedures before an Appeal Court are considered as part of the Criminal Process, but these are before a Unitarian Circuit Tribunal. All trial acts have to be in public audiences and in the presence of the Judge, prosecutor and defendant with his or her consul.
Mexico has 31 States and a Federal District and each one has its owns Highest Powers, in other words, the local Executive Power is represented by a Governor and in the case of the Federal District, by a Chief of Government or Major, a local legislature and a local High Tribunal. Also, all States, except the Federal District, have their own Constitutions and their own local regulations in specific areas; nonetheless, those shall never be against the federal foundation.
Criminal matters, as outlined by the Treaty of Mutual Assistance between Canada and Mexico, for example, have a different meaning in each country. In Canada, “investigations or proceedings relate to any offence created by a law of Parliament or by the legislature of a province, while in the Mexican United States, all investigations or proceedings relate to any offence under federal o state law.”
Section 91 (27) of The Constitution Act or Canadian Constitution, establishes criminal law as under sole jurisdiction of the federal Parliament, which means that the enactment of criminal law is under the exclusive jurisdiction of the federal government; therefore Canada has one Criminal Code or An Act respecting the Criminal Law. However, the provinces separately promulgate “quasi-criminal” or regulatory offences in a variety of administrative and other areas. The administration of justice and penal matters are under the jurisdiction of the provinces, so each province administers most of the criminal and penal law via provincial and municipal police forces.
On the other hand, as a general rule in Mexico, criminal regulation operates at a local level, which means that it is under the States jurisdictions, except in those cases that are regulated by Federal Laws. Therefore, each State has it own Criminal Code, Criminal Procedures Code and several Criminal regulations in order to prevent and combat criminal acts, although, the fundamental basis of Criminal procedures and rules are established by Mexican Constitution, such as: a) No one shall be put on trial by using either under exclusive laws or special court; b) Any law shall be applied retroactively against any person; c) No one shall be deprived of his or her life, freedom estate, possessions or rights by a pre-existing judicial ruling issued by a court to the respective trial and which due process of law has been enforced; d) Analogical reasoning and the majority of reason standard of review shall both be forbidden in resolving criminal trials and therefore, punishments ruled shall always be established by law; e)Disturbances against any person, his or her family, residence documents or possessions shall be made by warrant issued by an authorized official; the warrant shall clarify the statutory law which the decision was based on, as well as shall explains the legal procedure to be undertaken; etc.
