Olga María del Carmen Sánchez Cordero de García Villegas, PhD in Law did her judicial training in different Mexican Universities (Universidad autónoma de México, Universidad Autónoma de Morelos, Universidad Autónoma de Nuevo León) and abroad (University College of Swansea, Great Britain).
After her teaching career, she carried out different functions like that of Judge for the Supreme Justice Court of the Federal District of Mexico before she was assigned in 1995 as Minister for the Nation’s Supreme Justice Court. She has a very extensive list of publications which includes various judicial topics (constitutional justice, notary law, protection of fundamental rights). She is a member of various National Councils (for example the National Council for Graduates of the Law Faculty of the Autonomous University of Mexico (Civil Association), and international councils, (member of the International Women’s Forum). During her career she has been awarded with numerous prizes and distinctions in Mexico and abroad (Award at the International Conference of the International Women’s Forum 2006).

QUESTION.- What was the situation like for minors in conflict with the law in Mexico, before the Senate approved the ‘Federal Law for Juvenile Justice’ from April 25th, 2006?

ANSWER.- Since 1923, year in which the first Juvenile Court was established in Mexico (San Luis Potosí), until the amendment of article 18 of the 2005 Federal Constitution, the main characteristic of young offenders’ legislation –with a gradual intensity decrease-, has been its protective nature, which was inspired in the “irregular situation” doctrine that is characterized by the State’s intervention in favour of children and youth that find themselves in difficult situations because they committed an offence, they are marginalized, abandoned or in danger, with the purpose of protecting them.

However, notwithstanding the praiseworthy purposes of this system, -to protect young offenders in a special way-, it actually contributed to the diminishment of the respect and exercise of their rights, inasmuch that its implementation had as a consequence that the same treatment was provided to youth who had committed a offence and to those who required an intervention for their own good because they were in a situation of abandonment or danger; furthermore, it led to the confinement for undetermined periods of time; the carrying out of processes without all of its due formalities; and the adoption of measures by the authorities based on personal circumstances and not on specific behaviour, among other things.

This means that the protective doctrine, in general terms and in countries where it was adopted, gave rise to the creation of laws on the subject, in which reference to concepts such as “social, moral and materialistic abandonment” of a child, a child in an “irregular situation”, and the child “in danger” were very common; likewise, the courts and administrative organisms whose main objective was to care for minors in these situations, were created, as well as lock-up houses, “correctionals”, and youth agricultural farms.

Q.- In what context has this new law been developed?

A.- One of the main engines as well as main objectives pursed by the constitutional reform was to incorporate, at a constitutional level, the integral infancy protection (proteccion integral de la infancia) doctrine, specifically its section that deals with youth justice, developed and promoted primarily by the United Nations Organization, and found in many international instruments such as: (a) United Nations standard minimum rules for the administration of juvenile justice (The Beijing Rules); (b) United Nations guidelines for the prevention of juvenile delinquency (The Riyadh Guidelines); (c) United Nations standard minimum rules for non-custodial measures (The Tokyo Rules); (d) Convention on the rights of the child; as well as the Inter-American Human Rights Convention which must be taken into consideration because it is part of the current legal framework in the human rights field.

Furthermore, it is important to note that even though the first three instruments abovementioned do not have an international legal treaty character in our system, they are international instruments, and the last one is in fact an international treaty according to article 133 of our Constitution.

The aforementioned is reinforced because the Beijing Rules were precursors to the cited convention as well as to the United Nations guidelines and standard minimum rules for non-custodial measures.

The whole of the mentioned instruments are the ones that propose the broadest and most detailed guiding principles on the subject, which means that they guide the interpretation of the most recent constitutional reform. On the other hand, concerning the International Conventions aforesaid, it is clear that –ratified as they are- they are a source of law in our country and, according to the Nation’s Supreme Court of Justice recent criteria, they even make up the Supreme Law of all the Union, which means that they represent a common right in the Federation and the Entities to which the Federal and Local legislation must be adapted to.

In consequence, this is the context in which the development of this new law was started, between international commitments and the constitutional obligation to legislate in such ways.

Q.- What main changes or improvements to the minor’s welfare does this law offer?

A.- It picks up on the four distinctive elements of the reform to article 18 of the Constitution which state that: (a) it must be based on the idea that the minor is a subject with responsibilities; (b) he/she possesses certain rights and guarantees that assist him/her since he/she is a subject of process because of delinquent behaviour (guarantee); (c) it is of a criminal nature, although it is specific and adapted because the active subject of the unlawful behaviour is a minor; and (d) concerning the jurisdictional aspect, mainly accusatory court.

Therefore, if we compare the elements that have so far been defined as characteristic or distinctive for the essence of the new youth justice, (which is designated by the constitution’s own reform power as the “Integral Justice System for Adolescents”), with those that characterized the protective model that was abandoned, the outlines and bases on which the new model must be based, which is basically the guarantee system, will become a lot clearer.

Q.- on which level or levels will the minors notice the changes that will result from the passing of the law?

A.- there will be changes at all levels, meaning, in the Public Prosecutor’s referral, in the procedure established by the Special Judge for Adolescent Justice and in the execution of the sentence that will be imposed because the youngsters must be recognised as a person with fundamental rights that are common to every human being, but also as a person with specific rights that take into account the characteristics of a person in development, as well as the respect for the individual guarantees established in the constitutional articles 14 and 20, such as the right to a hearing and the right to have proper legal assistance, among other things.

Q.- Which principles are included in the new legislation that will ensure the complete protection of girls, boys, and young people’s rights?

A.- Part of the guarantee model that is currently in force, is the fact that the youth justice system is governed by the legality principle; it’s most important characteristic is that youngsters can only be subjected to a hearing for behaviours that are defined as offences in the criminal law. This represented an important progress in comparison with the protective model. It means that the constitutional principle prescribes that it can only punish an act if its punishment can be found in the law before it is committed; meaning that regardless of the necessity to punish a behaviour, or how harmful it may be to society, the State can only apply judicial-criminal punishments if this circumstance is previously and specifically included in the legislation.

Due process guarantee is one of the aspects that guarantee the integral infancy protection doctrine that can be found in international instruments, such as the right of every child to have access to free and adequate legal representation from the moment they are detained or accused, until the moment that the sentence he/she receives is finished.

Principle of proportionality: this principle has three perspectives: A) Proportionality of the punishments for behaviours, meaning the punishment the legislator designates for the offences in the general rules for minors, as well as designating various punishments for each type of behaviour classified as an offence in order to satisfy this condition. B) Proportionality in determining the measure, meaning that both the internal conditions of the subject and the external of the behaviour are taken into account. This way the judge will be able to determine which sentence will be applied, varying between the minimum and maximum sentence established by the legislator for a determined conduct. C) Proportionality in the execution, according to the necessity of the measure; the measure is not only executed according to the configuration made at the beginning, but can also be adapted during the execution so it will continue to be proportional to the minor’s new situation.

Principle of the minor’s best interest: this means that the actions of institutions, courts and authorities in charge of applying the criminal system for adolescents must be based on what is best and convenient for the full development of the minors’ personality and capacities.

Minimum intervention principle: this principle consists of three aspects: A) Diversion: based on the contents of article 40.3 of the Convention on the Rights of the Child which states that a minimum number of conflicts should be resolved on a judicial level. B) Detention as a more serious measure. The secondary regulations should always consider this condition, meaning that detention can only be applied for more serious offences; we have to mention that all international instruments refer to this point; and C) Short term. In general the expression “for the minimum necessary period” is understood as the period of time that is necessary to obtain the objectives of the adolescent’s rehabilitation. However, in the common legislations a maximum time for the detention measure must be established, so it is legally guaranteed that the measure will not last any longer than the legal maximum.

Q.- Which characteristics and functions will the new organisms or agencies of the Public Prosecutor’s Office, Courts, Police, etc. have according to the new Federal Juvenile Justice Law?

A.- Before answering this question, it is necessary to point out that the objective of the constitutional reform was to adapt youth justice the doctrine of integral protection of infancy, promoted by international organisations such as United Nations. They have referred to both the specialisation of organisms and that of civil servants, emphasizing the training of civil servants as a necessary and even instrumental to achieve the adolescent’s social reintegration.

Based on the aforementioned, the civil servants (whether from Public Prosecutor’s Offices, judges and police or whoever working in the juvenile justice system) must not only be trained regarding the knowledge, but must also be trained to treat the minor offenders with humanitarian attitudes. These characteristics are essential and decisive for the youngster to obtain his/her social reintegration in satisfying conditions for him/her, his/her family and society in general.

On the other hand, specialised ministries will have to, apart from what is established in the constitutional article 21 (investigate and pursue crime), apply rules and mechanisms in order to, whenever it is necessary, avoid that minors are subjected to a judicial process. These cases should be treated by the law enforcement officials, meaning that the case should stay in a pre-trial phase without the necessity of taking it to court.

As far as the judges are concerned, their function is based on respecting the minor’s individual guarantees during the procedure, such as: the hearing, proper process, as well as the principles the completely protect the adolescents’ rights.

Q.- This Law being a Federal law, how will it be applied on a local level?

A.- According to the new constitutional regime, each jurisdiction judges the committed offences against each and every one of the judicial orders or legislation according to what is established by local laws and the constitution. Therefore the federal justice organs have the competence to know the offences in terms of federal law (articles 18 and 104, Section I of the Constitution. The rule on competence in the articles 500 and 501 of the Federal Criminal Code must also be taken into account. According to these rules, the common law courts are competent to know the federal crimes committed by adolescents, and if these do not exist, the competence will pass on to the federal youth courts. This will work like this until the integral youth justice system is established and for those crimes that were committed during the former constitutional regime, during legal vacuum periods and until the indicated moment, and which have not been sentenced yet and the Special Federal Courts have not been created yet, the collaboration agreements between the Federation and the States will be upheld.

Q.- What kind of detention measures will be applicable when this new law comes into force?

A.- The application and execution phase of the measures imposed on minors begins once it has been judicially determined. It includes all actions aimed at assuring its fulfilment and obtaining the objective of its application. Therefore it also includes everything concerning the administration and resolution of incidents presented during this phase.

This phase can be divided into two great areas depending on whether the measure includes the adolescent’s deprivation of liberty or not. This way, the integral infancy protection doctrine has established rules and guidelines for each of the cases.

In this sense, the following rules of the Beijing Rules are illustrative: number 23 on non-institutional treatment as well as rule number 26 on institutional treatment. 26. Objectives of institutional treatment include of training and treatment of juveniles placed in institutions is to provide care, protection, education and vocational skills, with a view to assisting them to assume socially constructive and productive roles in society; Juveniles in institutions shall receive care, protection and all necessary assistance-social, educational, vocational, psychological, medical and physical-that they may require because of their age, sex, and personality and in the interest of their wholesome development; Juveniles in institutions shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults; Young female offenders placed in an institution deserve special attention as to their personal needs and problems. They shall by no means receive less care, protection, assistance, treatment and training than young male offenders. Their fair treatment shall be ensured; In the interest and well-being of the institutionalized juvenile, the parents or guardians shall have a right of access; Inter-ministerial and inter-departmental co-operation shall be fostered for the purpose of providing adequate academic or, as appropriate, vocational training to institutionalized juveniles, with a view to ensuring that they do no leave the institution at an educational disadvantage.

Q.- Apart from the age criteria, which principles and mechanisms establish the minor’s criminal responsibility?

A.- To establish the minor’s criminal responsibility, their age is very important because detention is only used as a last resource and for as short as time as possible. It can only be applied on adolescents older than fourteen that have committed antisocial offences that are considered serious.

Q.- What is the difference between this new criminal system for minors and the criminal system for adults?

A.- The difference between the adult criminal law and the adolescent criminal law is the fact that the objective of this last one is an educational criminal law or in other words, has educational disciplinary characteristics; these ingredients are present in the general criminal system, although in different proportions because this educational disciplinary principle is the consequence of the principles on the children’s best interest and integral protection. These principles do not only influence the characteristics of the punishment, but also other aspects like the preference for non-custodial measures and the preponderance of education in the determination and execution of the measures, among others.

The basic difference between the criminal justice system for adolescents and adults lies in the intensity which is reflected in the guarantee content of each of them (in the first one there is a special extra in this area), as well as in the rehabilitating or educational aspect versus the punishing aspect of the sanctions who are present in different proportions in each one.

Closely linked to the aforementioned, and also a distinctive sign of the system itself, the integral justice system for adolescents imposes a procedure which is similar to the criminal one and, especially, accusatorial (instead of inquisitorial). The international instruments that motivated the reform, although they do not mention it in these specific terms, stress the importance of the independence and separation between the functions of the police, the Public Prosecutor and – at the other end- of the organism in charge of issuing a judgement concerning the offence that was supposedly carried out. They give a more concise function to the judge, ruling depending on the accusation that is presented.

The Convention on the Rights of the Child itself establishes clearly that the trial started against minors has to be led by an independent and impartial organism; this is confirmed by the reformed article 18, stating that: “In all proceedings against adolescents there will be the guarantee to a proper legal process as well as the independence between the authorities that carry out the referral and those who decide on the measures.”

In the rules mentioned above, special emphasis is put on the separation between accusation and judging so the proceedings that should be established after this reform can only be considered, as was anticipated, prevailingly accusatorial.

Therefore, the conclusion is that the juvenile justice system founded because of the constitutional reform of article 18, can be separated in four proper elements, apart from its other contents: (1) it is based on the conception of the adolescent as a responsibility subject; (2) who has full rights and guarantees that help them while being subjected to a trial for delinquent behaviour (Guarantee); (3) of criminal nature, although special or modelled according to the active illegal conducts; (4) as far as the procedural jurisdictional aspect goes, it is mainly accusatorial.

Q.- What are the characteristics of the ‘Personalised Programme for the Fulfilment of the Measure by the minor offender? And which resources are available for its implementation?

A.- The application and execution phase of the measures imposed on minors begins once it has been judicially determined. It includes all actions aimed at assuring its fulfilment and obtaining the objective of its application. Therefore it also includes everything concerning the administration and resolution of incidents presented during this phase.

In this sense, the following rules of the Beijing Rules are illustrative:

PART FOUR

NON-INSTITUTIONAL TREATMENT

23. Effective implementation of disposition

23.1 Appropriate provisions shall be made for the implementation of orders of the competent authority, as referred to in rule 14.1 above, by that authority itself or by some other authority as circumstances may require

23.2 Such provisions shall include the power to modify the orders as the competent authority may deem necessary from time to time, provided that such modification shall be determined in accordance with the principles contained in these Rules.

PART FIVE

INSTITUTIONAL TREATMENT

26. Objectives of institutional treatment

26.1 The objective of training and treatment of juveniles placed in institutions is to provide care, protection, education and vocational skills, with a view to assisting them to assume socially constructive and productive roles in society.

26.2 Juveniles in institutions shall receive care, protection and all necessary assistance-social, educational, vocational, psychological, medical and physical-that they may require because of their age, sex, and personality and in the interest of their wholesome development .

26.3 Juveniles in institutions shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults.

26.4 Young female offenders placed in an institution deserve special attention as to their personal needs and problems. They shall by no means receive less care, protection, assistance, treatment and training than young male offenders. Their fair treatment shall be ensured.

26.5 In the interest and well-being of the institutionalized juvenile, the parents or guardians shall have a right of access.

26.6 Inter-ministerial and inter-departmental co-operation shall be fostered for the purpose of providing adequate academic or, as appropriate, vocational training to institutionalized juveniles, with a view to ensuring that they do no leave the institution at an educational disadvantage.

27. Application of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations

27.1 The Standard Minimum Rules for the Treatment of Prisoners and related recommendations shall be applicable as far as relevant to the treatment of juvenile offenders in institutions, including those in detention pending adjudication.

27.2 Efforts shall be made to implement the relevant principles laid down in the Standard Minimum Rules for the Treatment of Prisoners to the largest possible extent so as to meet the varying needs of juveniles specific to their age, sex and personality.

28. Frequent and early recourse to conditional release

28.1 Conditional release from an institution shall be used by the appropriate authority to the greatest possible extent, and shall be granted at the earliest possible time.

28.2 Juveniles released conditionally from an institution shall be assisted and supervised by an appropriate authority and shall receive full support by the community.

29. Semi-institutional arrangements

29.1 Efforts shall be made to provide semi-institutional arrangements, such as half-way houses, educational homes, day-time training centres and other such appropriate arrangements that may assist juveniles in their proper reintegration into society.

Q.- Which will be the alternative programmes or resources to the minor’s deprivation of liberty?

A.- For each government order, the system will be operated by institutions, courts and authorities that are specialised in securing and providing justice for adolescents. Guidance, protection and treatment measures can be applied according to each case, all this respecting the integral protection and best interest of the adolescent.

Q.- Are the objectives of youth justice different from those of adult justice?

A.- Both systems are different. The main characteristic principle making the difference between the juvenile and adult justice system, is the educational aspect. This is only the consequence of the best interest and integral protection principles. The educational principle is meant in accordance with the current conception of the fact that minors are considered as subjects with full rights and responsibilities and no as a protection object.

From the perspective of the integral protection doctrine, the principles of the minor’s or adolescent’s best interest and of the integral protection, cannot be used to limit their guarantees more than those of adults.

It is precisely the characteristics of the justice system for minors or adolescents which affirm that its objective is different from that of the adult system; these characteristics are the following: prevent instead of punishing, avoid going to trial, preference for non-custodial measures and prevalence of education in the determination and execution of measures, among others.