Mexico Could Implement 'Faceless Judges' for Organized Crime Cases

"Socalj" for Borderland Beat

The judicial reform promoted by Andrés Manuel López Obrador and his party, Morena is generating controversy, protests and strikes by judicial workers. The most talked about issue has been the proposal that all judges be elected by direct vote at the polls. 

But this week a new factor of controversy has been added. Morena and its allies in the Chamber of Deputies approved the inclusion in the initiative of anonymous judges in order to protect judges who handle cases of organized crime. It is a measure with noble aims but has given rise to abuses that civil associations and international organizations have documented and denounced, as it violates the right to a trial before an independent, impartial and suitable court.

The figure of 'faceless judges' was incorporated into the official initiative on the recommendation of López Obrador himself, who in his morning press conference on August 20 said that it was necessary to include a "kind of protection" for judges who handle organized crime cases. "A mechanism where authorities make decisions without it being known, to find a way that can be done, because many are subject to threats, to pressure," said the president. 

This Monday, during the vote on the initiative in the House of Representatives committees, it was approved to modify the opinion with the presidential recommendation.  The reform now establishes that, for cases of organized crime, the Judicial Administration Body - newly created - "may arrange the necessary measures to preserve the security and protect the identity of the judges."

The use of anonymous judges was first promoted in Mexico by former President Felipe Calderón, the architect of the war on drugs. In 2010, the former PAN leader asked Congress for a legal amendment to incorporate this figure into the Mexican legal system, not only to protect judges, but also police officers, prosecutors and witnesses, so that they could file complaints or testify in court without being exposed to revenge from criminals. The petition, which was unsuccessful, was in contrast to the push that Mexico was giving to oral trials, a more agile and transparent model of justice. Many studies place the birth of the spiral that has plunged Mexico into the endless violence of organized crime in the Calderon era, when the government launched a frontal offensive against the cartels.

López Obrador's judicial reform is ready to be approved by the full House of Representatives, where the new legislature will take office next Sunday. Morena and its allies from the PVEM and the PT have the qualified majority to approve changes to the Constitution without having to negotiate with the opposition, reduced to political irrelevance. Former President Calderón is days away from seeing one of his wishes fulfilled in a legislature dominated by the block aligned with López Obrador.

While it is unknown the total number of threats and bribery federal judges in Mexico have seen, very few judges have been assassinated since the beginning of the Drug War in compared to other political and law enforcement officials.

In the period from 2001 till 2020, a total of 5 federal judges were killed, two of those five occurred since 2016. In recent years, two judges have been reported killed, one by gunmen and the other by their partner in an act of domestic violence.

Countless scores of police officers, politicians and other figures have been killed by cartels and organized crime groups in Mexico since that time. 

Faceless Judges in Other Countries

“This type of court was created in Italy, where it was implemented for trials against local Mafias,” read Deputy Lidia García Anaya, of Morena, when proposing the modification to the initiative. “These are bodies where the judges are anonymous, with the objective of safeguarding their integrity and also that of their families,” she added. The mechanism of anonymous judges exists in Brazil, Colombia and Peru and has been used mainly to combat guerrillas, drug trafficking organizations stemming from the violent era of Pablo Escobar and terrorists including Shining Path members in Peru. 

In 1992, prosecutor Giovanni Falcone was blown up by a bomb planted beneath a motorway near Palermo by the Sicilian Mafia, Cosa Nostra. It killed him, his wife and three police officers. His colleague Paolo Borsellino was assassinated by a car bomb two months later.

In Colombia, the anonymous jurist (judge) system was granted under a 1991 decree after drug cartel hit men assassinated several judges. Under the faceless justice system, entire trials have been conducted on paper, the judges signing documents not with a name but with a number.

Colombia's chief prosecutor, Alfonso Gomez, says the system served its purpose. Not a single faceless judge had been murdered since 1991, he said. Between 1979 and 1991, 278 judges and magistrates were killed. Congress let the decree lapse following the arrests of Cali Cartel bosses and the faceless system began to phase out in 1999.

 

With over twenty judges threatened with death and living under police protection, the Rio de Janeiro State Court in 2019 approved the creation of a special circuit court to prosecute cases involving corruption, drug trafficking, money laundering, organized crime, and paramilitary groups. The circuit court would have a group of “faceless judges” prosecuting the cases on a 60 day rotation, instead of a single magistrate overlooking a specific case.

The UN Human Rights Committee has explained that, although the identity of such judges can be verified by an independent authority, the accused is unaware of this and is also unaware of the status of the judges. In addition, the Committee adds, trials with 'faceless judges' often involve other irregularities: exclusion of the public, and even of the accused or his lawyers, from the stages of the trial; restrictions on communication between the accused and his representatives, or on the accused being able to have a lawyer of his choice; insufficient time to prepare the defence; or serious restrictions on summoning or questioning witnesses, for example, the officers responsible for the arrest and interrogation of the accused. "Courts, with or without 'faceless judges', in circumstances such as these, do not satisfy the fundamental standards of a fair trial and in particular the requirement that the court must be independent and impartial," the UN Committee has concluded.

The Inter-American Court of Human Rights has also issued a ruling against the measure of anonymous judges. The body points out that the remedy prevents defendants from knowing the identity of the judges and therefore from assessing their suitability and competence, as well as determining whether there are grounds for requesting their recusal, which violates Article 8.1 of the Inter-American Convention on Human Rights. “Judging by judges of unknown identity does not allow the defendant to question their competence, legality, independence and impartiality,” it said.

Sources El Pais, Tampa Bay Times, Rio Times