On January 9, 2013, the Congress of the Union published in the Official Federal Gazette the decree issuing the General Victims Law (the Law), which enters into force 30 days after its publication.
The purpose of the Law is to recognize and guarantee the rights of victims of crime and of violations of human rights, especially providing them with the effective rights of assistance, protection, attention, truth, justice, full recovery for the damages, restitution of violated rights, due diligence, not repetition and all rights protected in our Constitution in the chapter on Human Rights.
The Law also establishes and coordinates the necessary actions to promote, respect, protect, guarantee and permit the effective exercise of the rights of victims; as well as implement mechanisms so that all the authorities comply with their obligations to prevent, investigate, sanction and achieve full recovery for the damages caused to victims.
Through this Law the National Victims Services System (“the Services System”) is created, the purpose of which is to establish, regulate and supervise the guidelines, plans, programs, projects, actions and other public policies that are established for the protection, assistance and services for crime victims, in the federal, state and municipal spheres.
The Services System must be created within 90 calendar days after the entrance into force of the Law, and it will be formed by all the federal, state and municipal public entities and institutions, autonomous bodies and other organizations responsible for the protection, aid, services and defense of the rights of victims. It is also established that 30 days after the Services System has been created, the Executive Commission for Victim Services must be formed, in which crime victims and civil society organizations specialized in the design and management of public policies will have representation and direct participation.
The Regulation of the Law, a fundamental instrument for its effectiveness and feasibility, must be issued by the Federal Executive no later than in a term of 6 months from its publication.
Finally, the Law imposes on the local Congresses and the authorities forming part of the Services System the obligation to reform their laws in a term of 180 days in order to harmonize them with the Law.
It is important to mention that this new Law was changed by former President Felipe Calderón in mid-2012 by the filing of a Constitutional Dispute before the Supreme Court of Justice of the Nation, and therefore it was never promulgated or timely published. The Law was challenged by recommendation of the Office of the Legal Counsel, then headed by Lic. Miguel Alessio Robles. The causes of the dispute at that time were not shared by the advisers of President Peña, who proceeded to abandon it and approve it in the same terms as it was sent to the Federal Executive by the Congress at that time. The following were the basic arguments of the Office of the Legal Counsel for the challenge:
That the Law is unconstitutional because the Congress lacks powers to legislate in matters not described in article 73 of the Constitution.
That it invades powers of the States in criminal matters by imposing on them participation in and submitting them to the jurisdiction of the Executive Commission of Victim Services.
That there is no budget approved that would allow its budgets to be exercised, especially regarding full recovery of damages.
That the Law does not make reference to the victims of crime occurring before its entrance into force.
Given these deficiencies, Lic. Miguel Alessio condemns the Law to failure and as dead letter due to its vulnerability to amparo proceedings, which reaching five in the same sense and uninterrupted will result in precedent that will annul it. The Firm recognizes the significant deficiencies the Law contains but does not share the opinion of the former Office of the Legal Counsel of the Presidency of the Republic:
The Law is unconstitutional because the Congress lacks powers and it is vulnerable to amparos. While the distribution of powers of article 73 of the Constitution is restrictive in relation to its listing, it should also be interpreted broadly in relation to the scope of each of them. In this regard, we consider that in spite of the fact the power to legislate in this area is not expressly indicated, it should be interpreted as inherent to Section XXI, especially its last paragraph, in relation to section XXX. In this way, the obligations that the Law imposes fall on the Mexican State, not on any of the delinquents that in particular have engaged in illegal conduct (crimes). The Law also does not provide, unfortunately, any mechanism for the Mexican State to be able to file a counterclaim against the delinquents for the monetary compensations that under the Law should be spent to compensate the victims. The Amparo is the fundamental legal instrument for the defense of the human rights of Mexicans, and in case of the application of the new Law no rights would be violated of those investigated, processed and sentenced for the commission of crimes, and therefore the Constitutional Rights Proceeding would be invalid. The Law creates new human rights for the victims of crimes, imposing on the State the obligation to compensate them for the failure to meet the obligations it has to provide and guarantee the safety of people and their assets. It is not a Law that generates new rights for the delinquents, it is a law that indemnifies the victims of crimes. The amparo, in our opinion, would be invalid as a means of defense by the criminals, against the acts the new authorities issue under the new law.
The Law invades the sphere of competence of the States and, with that, the Federal Pact. We do not think this is so. In any case if the states of the Federation voluntarily sign the coordination and participation agreements to be incorporated into the National Victims Services System and to the Executive Commission for Victim Services established by the Law, in strict exercise of their “sovereign” powers, any potential invasion of powers would be overcome (this same decision constitutes the genesis and support of the Tax Cooperation Law by which the determination, investigation, collection and distribution of taxes is made). In any case it would have to be the disagreeing states that should file the unconstitutionality Appeal before the Supreme Court to challenge the Law.
The Law does have budget. Again, both the Federal Government and the States and Municipalities can freely enter into collaboration agreement to establish the bases for providing the resources to the new authorities, as well as the fund that is created to indemnify the victims of crimes.
In conclusion, while it is a Law with serious deficiencies that can and undoubtedly will be modified in the future, it is also a new regulation that makes manifest the intention of the Mexican State to assume, although timidly, its responsibility before the terrible consequences that the lack of security and administration of criminal justice have imposed and continue to impose on thousands of Mexicans. It is to admit that the State, at all levels (Federal, state and municipal), has failed in its obligation to establish and maintain institutions that guarantee the security of people and their property.
It is a first step in the right direction, shoving and stumbling, but a first step.
If you would like to learn more about this topic contact Lic. Rafael Sámano: rsamano@samanosc.com.mx
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