Mexico: The Crime of Investigation

The latest action taken by ARTICLE 19's Mexico and Central America Office, for infringement of fundamental rights and freedoms, against Article 398 Bis of the Criminal Code for the State of Chiapas was resolved on 30 September 2015. This criminal provision aims to punish acts of seeking and disseminating information on the security forces' activities, with associated prison sentences of up to 15 years.

This decision, taken by the country's highest court, sets a historic precedent for Mexico. Firstly, it incorporates the concept of the chilling effect into the Mexican judicial system; and will, secondly, halt the worrying tendency to criminalise the act of exercising the right to access information. Mexico's Supreme Court of Justice (SCJN) has protected the right to receive information of public interest, such as that relating to the work of the police and the army.

The aim of the Congress of Chiapas, in enforcing this law, was to punish "hawking": a practice used by organised crime informers to raise the alarm about police and Army operations. Many of these informers are people living in villages and communities, paid by criminals to supply information. "Hawks" are the last link in the chain of command of criminal groups.

However, criminal laws like these are so ambiguous that practically any act of seeking information on issues connected with public security becomes restricted. Unfortunately, besides Chiapas, there are a further 18 states whose laws make such activities a crime.

This rule, which had been in force since May 2013 in the State of Chiapas, was challenged in the federal courts to get it declared unconstitutional. In order to do so, ARTICLE 19, in conjunction with journalists and lawyers from the southern state, filed three constitutional challenges.

The rulings by the Court of First Instance were appalling. The three different District Judges in the State of Chiapas who reviewed the cases decided that the journalists were not directly concerned. They therefore considered that there was no possibility of analysing whether or not the rule violated rights to freedom of expression and access to information. In other words, the federal judges in Chiapas argued that a criminal accusation against the journalists was needed in order to analyse whether or not this law unduly restricted their rights.

ARTICLE 19 decided to submit an appeal for review so that the Collegiate Circuit Courts (formed by three magistrates) could examine the judges' ruling. These courts would have the final say. Instead of that, we chose to ask the First Chamber of the SCJN to take on the three cases. The First Chamber of the SCJN decided to take on the cases in April 2014 owing to the potential for establishing new and important precedents on the issue of access to information.

A year later, on 20 May 2015, the First Chamber revoked the decision of the federal judges of Chiapas and considered the rule unconstitutional. The basic arguments of the First Chamber of the SCJN were as follows:

It concluded that the challenged rule restricted the enjoyment of the right to access information because it generated an intimidating or chilling effect by criminalising public discussion of such an important issue as public security.

It confirmed that the rule was ambiguous, as it used generic and abstract concepts like "public or state security"; thus it constituted an a priori obstruction to the act of seeking information.

In this respect, being an imprecise and non-restrictive rule, it is open to application or discretionary interpretation by ministerial and/or judicial authorities, and to the introduction of personal assessments by such authorities of the type of discourse that ought to be banned by it.

Likewise, it considered that, if the aim was to punish acts of collaborating or helping to commit crimes, as is sought by "hawking", there are types of criminal offence and specific modalities for that, such as concealment, or forms of participation contained in criminal laws, such as co-perpetration or complicity.