In summary
This article examines non-trial resolutions (NTRs) in Mexico’s justice system, highlighting their potential benefits in law enforcement predictability and corporate compliance. Concerns about NTRs favouring those with economic resources or social privileges are also discussed. We explore the need for proper implementation and monitoring of NTRs to enhance their effectiveness in reducing impunity and improving judicial efficiency, despite the challenges and ongoing debates surrounding their use.
Discussion points
- NTRs in Mexico face scepticism and potential misuse in corruption schemes
- NTRs are considered significant mechanisms for enforcing foreign bribery and related offences
- Mexican criminal law has potential NTR equivalents, such as deferred prosecution agreements and plea bargains
- The debate on NTRs in Mexico involves concerns about inequality
- Despite their potential benefits, NTRs in Mexico are underused and underdeveloped
Referenced in this article
- Recommendations of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions of the OECD, article XVIII
- Legal framework of Mexican criminal law including anti-bribery and corruption framework, and criminal proceedings
- OECD Anti-Bribery Convention
Introduction
In past years, the Attorney General’s Office has implemented NTRs in several high-profile cases. This publicity, especially around the cases of former public officials Emilio Zebadúa González and Emilio Lozoya Gil, has sparked skepticism regarding the reparation agreements negotiated between the Prosecutor General’s Office and the defendants. This scepticism is not surprising given the widespread distrust in the nation’s criminal institutions. This mistrust poses one of the most significant barriers to the success of NTRs and their equivalents under Mexican law.
As long as NTRs are perceived as part of a biased and transactional justice system, their effectiveness will be limited. Despite this, valid concerns and compelling arguments persist against applying NTRs in Mexico, particularly worries about the misuse of reparation agreements in ongoing corruption schemes. In last year’s publication, we explored how NTRs have successfully resolved criminal cases.
This year’s article builds upon the concepts explored in 2022. However, we address current concerns about the pros and cons of implementing NTRs in countries with low indexes of enforceability to provide a holistic understanding of the implications of implementing NTRs in Mexico.
NTRs as mechanisms for enforcing foreign bribery and other related offences
In last year’s article, we explained that NTRs are used to settle criminal cases without going to court through an agreement between the defendants and the prosecutor. In this article, we continue to focus our analysis of NTRs under the Recommendations of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Recommendations), specifically article XVIII, which contains the specific recommendations for NTRs and their potential application in Mexico.
According to the OECD, NTRs are the predominant means for enforcing foreign bribery and other related offences. Of all 44 states parties to the OECD Convention, 23 have successfully concluded a foreign bribery action. Based on a 2018 OECD study, between the entry into force of the OECD Convention and the cut-off date for the study, a remarkable 78 per cent of foreign bribery resolutions have concluded using NTRs.
There are many potential benefits of implementing NTRs as a law enforcement tool. Law enforcement agencies experience predictability by establishing clear guidelines on the opportunities for leniency in relation to corporations’ liability. This has promoted companies’ cooperation to work with law enforcement agencies and reach mutually beneficial agreements.
Another benefit of NTRs is their flexibility and adjustability based on the seriousness of the offences, while also taking into account factors such as voluntary disclosure and prompt cooperation. Prompt cooperation is a powerful example of how countries, by redefining the structure of incentives, can further promote corporate commitment to compliance by reaffirming how this commitment can allow for NTRs to be an option for a company facing criminal proceedings.
Finally, the OECD Recommendations were designed to be an achievable standard for OECD member states. Although Mexico does not currently have NTRs as they are presented by the OECD Recommendations, there are some provisions that could provide a starting point for Mexico to begin moving towards the standards of the Recommendations.
A critical examination of NTR usage in Mexican criminal law
Advocates for NTRs argue in favour of these mechanisms by highlighting that these mechanisms are compromising in nature rather than adversarial. Thus, NTRs incentivise wrongdoers to self-report and, therefore, increase the probabilities of reducing impunity for the corresponding crimes.
This section explores the pros and cons of using NTRs in Mexico. As we further explore in the following sections, Mexican legislators intended for NTR equivalents to offer a gateway for increasing the effectiveness of the Mexican criminal law adversarial justice system. This allows law enforcement agencies to focus their resources on the crimes that most affect the perception of unsafe conditions.
Anti-bribery framework
To fully understand the possible effects of implementing NTR mechanisms in Mexico, we must first broadly describe Mexico’s anti-bribery regulatory architecture. This structure is supported by Mexico’s National Code of Criminal Procedure (NCCP) (which governs both federal and state criminal proceedings), the Federal Criminal Code (which includes federal corruption offences), the General Law on Administrative Responsibilities (which includes administrative offences) and state statutes for criminal and administrative responsibilities.
In Mexico, bribery is a federal offence when a:
- public official is a federal public official;
- public official is conducting acts of a federal nature;
- crime is initiated, prepared or committed abroad but produces – or is intended to produce – its effects in Mexico; and
- crime is initiated or prepared abroad but is committed in Mexico, allowing for extraterritorial effects.
Relevant to this discussion, under Mexico’s Federal Criminal Code, corruption of foreign officials is a crime that is punishable with imprisonment and special sanctions for Mexican corporations that partake in these activities or those who fail to employ adequate measures to identify or mitigate these risks.
Finally, over the past few decades, Mexico has acquired several relevant international commitments by signing and ratifying the OEA Inter-American Convention Against Corruption, the OECD Convention, the UN Convention Against Corruption, and the UN Convention Against Transnational Organized Crime.
NCCP
On 18 June 2008, Mexico revamped its criminal justice system through a constitutional reform, which signalled a transition from a traditionally inquisitorial–written criminal justice system to an accusatory–oral system. The system entered into force at the federal level on 24 November 2014 and in all states on 18 June 2016.
In this context, on 8 October 2013, an amendment to the Mexican Constitution empowered Congress to enact national legislation on matters of criminal procedures, alternative dispute resolution mechanisms and enforcement of criminal judgments, which were applicable and mandatory for both federal and local authorities. Thus, since 2014 the NCCP has governed the rules and procedures concerning any criminal proceeding in Mexico. The NCCP applies at both the state and the federal levels.
The investigation stage in criminal proceedings
Under Mexico’s Constitution, the Attorney General’s Office bears the responsibility of investigating and prosecuting crimes. Therefore, federal and local prosecutors and their investigating agents in Mexico are accountable for investigating and prosecuting crimes. Criminal investigations under the NCCP comprise the following two stages.
- The initial investigation stage commences when a criminal report or complaint is filed until the investigated party is summoned to appear before a supervisory judge in an initial hearing. During this hearing, the prosecutor will inform the defendant about the ongoing criminal investigation.
- The complementary investigation stage starts when a supervisory has evaluated the merits of the prosecutor’s initial investigation and decided that there’s sufficient evidence to subject the investigated party to a criminal process.The standard to indict a person is one of probability (ie, probable that the defendant committed the crime), while the standard for the prosecutor to obtain a guilty judgment is proving beyond a reasonable doubt that the defendant committed the crime.
As Mexican prosecutors have broad prosecutorial powers and are authorised to conduct, collect and request a large array of investigation techniques and acts to support their case theory, the main restrictions found in the NCPP for Mexican prosecutors conducting a criminal investigation are the victim and defendant’s human rights.
Cooperating parties to criminal proceedings
In the Mexican legal system, the role of cooperating parties in criminal investigations is confined to the execution of a an opportunity criterion. NTRs, as outlined and described under the OECD Recommendations, do not exist in Mexico. An opportunity criterion may apply where a defendant delivers essential and useful information to the prosecution regarding another more severe crime and agrees to testify. This scenario offers the closest resemblance to an NTR under Mexican law. When an opportunity criterion is used the criminal action is extinguished.
Besides opportunity criteria, deferred prosecution agreements, plea bargains and alternative proceedings are similar to NTRs. Deferred prosecution agreements allow the suspension of criminal proceedings against the defendant under specific conditions. Plea bargains in Mexico allow for the defendant to negotiate with the prosecution for a reduced sentence in exchange for a guilty plea. Finally, alternative proceedings substitute traditional imprisonment for alternative measures such as house arrest or electronic monitoring.
In Mexico, cooperating parties are usually defendants who have entered into an agreement with the prosecutor, providing information to prosecute a more serious crime in exchange for leniency.
Traditionally, prosecutors were legally mandated to prosecute every crime they investigated. However, the 2008 constitutional reform allowed prosecutors to apply opportunity criteria and refrain from accusing an investigated party if the defendant redressed or guaranteed the damages to the victim and the investigation fell under specific cases provided by the NCPP.
Mexican prosecutors can enter an NTR equivalent (among others) when a defendant provides essential and effective information in trial to prosecute a more serious crime. However, an opportunity criterion cannot be made available when the defendant is investigated for crimes against self-determination (crimes of sexual nature against minors), domestic violence, tax crimes or crimes that severely affect the public interest. The restriction to grant an opportunity criterion in relation to the crimes that severely affect public interest tends to produce hesitation in Mexican prosecutors to apply opportunity criteria and enter into NTRs in corruption-related offences.
Mexican law does not define crimes that ‘seriously affect the public interest’. In this context is not unreasonable to believe that corruption-related offences could fall under this category. But the question of what is ‘public interest’ remains unanswered.
We are not aware of court precedents shedding light on this question. No corruption-related opportunity criteria have been challenged, so the courts haven’t had the opportunity to analyse whether a prosecutor may validly apply them to corruption cases. Despite this challenge, a prosecutor can still use their discretion and might choose to apply NTRs more progressively. This approach would be consistent with the international treaties Mexico participates in, the OECD Recommendations and Mexico’s own anti-corruption laws.
It would be reasonable for a prosecutor, provided all other conditions are met, to consider applying an opportunity criterion in a corruption case. For exampl, entering an opportunity criterion with a defendant that can provide information to crack down on a larger corruption scheme could be in the country’s best interest.
The ongoing debate: pros and cons on the implementation of NTRs in Mexico
As NTRs gain traction in combating corruption worldwide, the debate surrounding these mechanisms has intensified in countries such as Mexico, where NTRs are still in their infancy.
As outlined in previous sections, the benefits of NTRs are widely accepted. In summary, NTRs consistently help expedite justice, leading to quicker resolutions and reducing the backlog of cases in the court system. NTRs also contribute to more efficient resource allocation by relieving pressure on limited judicial and prosecutorial resources, enabling the justice system to focus on urgent, serious cases. In addition, NTRs can alleviate prison overcrowding, a growing concern in Mexico.
We must also consider some of the risks associated with using NTRs in Mexico. The debate concerning NTRs often mentions a strong inequality risk in their use. Authors and renowned practitioners have shared their concerns about how NTRs may disproportionately favour individuals with greater access to economic resources and individuals with significant social privileges.
This argument is based on the fear that NTRs could result in the question of whether an outcome of criminal proceedings may be subject to the weight of the defendant’s economic resources or social standing. In this regard, NTRs can be perceived as ‘putting a price on justice’, furthering the idea of ‘transactional justice’ in a country such as Mexico, where enforceability and impunity are two of the largest challenges the justice system faces. To ensure the success of NTRs in Mexico, valid concerns about inequality must be addressed in parallel with their implementation.
Opportunity criteria and NTR equivalents in Mexico appear to share the same nature as NTRs and the OECD Recommendations. They offer an incentive for wrongdoers to self-report and, therefore, increase the probability of reducing impunity for the corresponding crimes. Mexican legislators echoed this principle by explicitly recognising the increasing effectiveness of NTRs in the prosecution of crimes that most affect the perception of unsafe conditions and impunity of citizens as one of the opportunity criterion’s main objectives.
According to the latest statistics published in the Corruption Perceptions Index by Transparency International, Mexico ranks 126 out of 180 countries. Additionally, the Global Corruption Barometer found that there has been a 44 per cent increase in people that think that corruption has increased in the past 12 months. Even more worrying, 34 per cent of public service users in Mexico have paid a bribe in the previous 12 months. This index is a perfect example of a crime that is perceived as an important issue to address in terms of perceived unsafe conditions and impunity.
Regardless of their effectiveness, NTRs in Mexico continue to be underused and underdeveloped. For NTRs to be an effective mechanism in Mexico, the restriction to applying NTRs to crimes of public interest and the potential misuse of NTRs as a part of transactional justice will continue to hinder the mechanism’s success.
* The authors are especially grateful to Julieta Béjar and Ana Victoria Guevara for their contributions to the preparation of this article.
Notes
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