Mexico: Constitution amended, federal authorities given powers to prosecute crimes against free expression

After four years of campaigning, ARTICLE 19 welcomes the amendment of the Mexican Constitution to give the federal authorities the power to tackle widespread violations of the right to freedom of expression and information.

The Mexican Parliament amended Article 73 XXI of the Mexican Constitution on 6 June, giving federal authorities the power to take on and prosecute crimes committed against freedom of expression and information, to ensure that they are investigated and tried at a federal level.

ARTICLE 19 has been advocating for reform of Article 73 XXI for the last four years, including through legal and technical advice to the Congress and the authorities, and at the international level. The reform has been recommended by international bodies such as the UN Human Rights Committee, the Inter-American Commission on Human Rights and the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue. ARTICLE 19 welcomes the commitment and willingness of the parties involved to carry this reform process to the end.

This federalisation, as it is currently understood, represents a step forward in terms of strengthening legal security for those who are targeted for exercising their freedom of expression. It also implies a greater commitment by the federal authorities who to date have done little to address the pressing needs arising from violence against the media in Mexico.

ARTICLE 19 hopes that the approved reform, together with the necessary amendments to secondary legislation, will be a step towards combating the environment of impunity for crimes against freedom of expression. Until now, the federal authorities, claiming lack of competence over these crimes, have exacerbated impunity. In particular the Special Attorney's office for Crimes against Freedom of Expression (FEADLE), has brought criminal charges in just 23 cases, with only one criminal sentence, compared to the 632 registered attacks against journalists and the media committed since the FEADLE's creation to date. This figure also includes the killings of 54 journalists, a further 10 disappeared journalists and 36 attacks with firearms or explosives against media outlets.

WHAT ARE THE IMPLICATIONS OF THE REFORM?

1. It gives federal authorities the power to investigate and try crimes committed against journalists, persons or premises which affect, limit or undermine the right to freedom of expression and information, or freedom of the press.
2. The federation may take on and prosecute any case falling under state jurisdiction without being subject to the requirement of a connection between a local crime and a federal one before it can take on the case.
3. The power to take on cases is partial and discretional until amendments are made to secondary legislation to define the discretional power to take on cases, including:
   a. The circumstances in which the Federation will be obliged to take on cases for investigation and prosecution.
   b. Amendments necessary to secondary legislation for the effective implementation of the reform, including to:
   I. The Federal Criminal Code;
   II. The Federal Code of Criminal Procedure; and
   III. The Organic Law of the Federal Judicial Power.

With a view to contributing to the public debate on this pressing issue, ARTICLE 19 makes the following recommendations to the Mexican authorities in accordance with international standards:

• The circumstances in which the Federation will be obliged to take on cases for investigation and prosecution should include at least:

• • Serious crimes, such as killings, disappearances, abductions, hostage taking, or attacks against media premises
  • Cases in which the authorities failed to initiate an investigation promptly, or cases in which there has been unjustifiable inaction, omissions, unreasonable delays for six months after the aggression took place, or lack of diligence by the state authorities in their investigation
  • Where the suspected perpetrator or instigator is a local authority.

• Amendments to secondary legislation must prohibit compulsory membership in professional journalist associations or licensing systems for those wishing to practice the journalist profession. Instead, these amendments must provide a broad definition of journalists that should include citizen journalists, bloggers and other social communicators.

• The amended provision refers to 'crimes [...] which affect, limit or undermine the right to information, or the freedoms of expression or the press.' Any amendments to secondary legislation which seek to expand on this drafting must not be ambiguous or do so in a way which limits the right to freedom of expression beyond the extent permitted in international law

• Any amendments to secondary legislation which seek to define the right to freedom of expression, information or the press must do so based on international law

• It is indispensable to strengthen the office of FEADLE in order to secure effective investigations by this special attorney's office. It is necessary to reinforce its structure, widen its mandate and secure human and financial resources.

ARTICLE 19 therefore calls on the following:

The Federal Congress to:

• Pass without delay the amendments to secondary legislation in an open and transparent process
• Allocate sufficient resources to FEADLE for the investigation of crimes against freedom of expression.

The Federal Executive to:

• Carry out the necessary reforms to incorporate FEADLE formally into the organic structure of the Mexican Attorney General's office
• Allocate to FEADLE sufficient human and financial resources to guarantee effective investigations.