Mexico Could Use ‘Faceless Judges’ to Prosecute Organized Crime Cases ~ Borderland Beat

The judicial reform promoted by Andrés Manuel López Obrador and his Morena party is causing controversy, protests and strikes by legal workers. The most discussed topic is the proposal that all judges be elected by direct vote at the ballot box.

But this week a new element of controversy has been added. Morena and her allies in the Chamber of Deputies have voted to include anonymous judges in the initiative to protect judges who handle organized crime cases. It is a measure with noble aims, but has led to abuses that civil associations and international organizations have documented and denounced, because it violates the right to a trial before an independent, impartial and appropriate tribunal.

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

This Monday, during the vote on the initiative in the committees of the House of Representatives, it was approved to change the opinion with the presidential recommendation. The reform now establishes that, for cases of organized crime, the Judicial Administration Body – newly created – “may take the necessary measures to maintain 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 to amend the law to include this figure in the Mexican justice system, not only to protect judges but also police officers, prosecutors and witnesses, so that they could file charges or testify in court without being exposed to revenge from criminals. The petition, which was unsuccessful, stood in contrast to Mexico’s push for oral trials, a more flexible and transparent model of justice. Many studies place the birth of the spiral that 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 set to be approved by the full House of Representatives, where the new legislature takes office next Sunday. Morena and her allies in the PVEM and PT have reduced to political irrelevance the qualified majority required to approve constitutional changes without having to negotiate with the opposition. Former President Calderón is just days away from seeing one of his wishes fulfilled in a legislature dominated by the bloc aligned with López Obrador.

While the total number of threats and bribes faced by federal judges in Mexico is unknown, very few judges have been assassinated since the beginning of the War on Drugs, compared to other political and law enforcement officials.

A total of 5 federal judges have been murdered between 2001 and 2020, with two of those five occurring since 2016. In recent years, two judges have been murdered, one by gunmen and the other by their partner in an act of domestic violence.

Since then, countless police officers, politicians and other figures have been murdered in Mexico by cartels and organized crime gangs.

Faceless judges in other countries

“This type of court was created in Italy, where it was implemented for trials against local mafias,” said deputy Lidia García Anaya of Morena, when she proposed the amendment to the initiative. “These are bodies where the judges are anonymous, with the aim of protecting 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 guerrilla fighters, drug trafficking organizations that emerged from the violent era of Pablo Escobar and terrorists, including members of the Shining Path in Peru.

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

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

Colombia’s chief prosecutor, Alfonso Gomez, says the system has served its purpose. Not a single faceless judge has been murdered since 1991, he said. Between 1979 and 1991, 278 judges and magistrates were killed. Congress repealed the decree after the arrests of Cali cartel bosses, and the faceless system began to gradually disintegrate in 1999.

With more than two dozen judges facing death threats and living under police protection, the Rio de Janeiro State Tribunal 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 cases on a 60-day rotation, instead of a single magistrate overseeing a specific case.

The UN Human Rights Committee explained that while the identity of such judges can be verified by an independent authority, the accused is not aware of this and is also not informed of the judges’ status. Moreover, the Committee added, trials with “faceless judges” are often accompanied by 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 defense; or severe restrictions on the calling or questioning of witnesses, for example the officers responsible for arresting and questioning the accused. “Courts, with or without ‘faceless judges’, in circumstances such as these fail to meet the fundamental standards of a fair trial and in particular the requirement that the court be independent and impartial,” the UN committee concluded.

The Inter-American Court of Human Rights has also ruled against the measure of anonymous judges. The body points out that the procedure prevents suspects from knowing the identity of the judges and therefore from assessing their suitability and competence, nor from determining whether there are grounds to request their disqualification, which is contrary to Article 8.1 of the Inter-American Convention on Human Rights. “The judgments by judges of unknown identity do not allow the suspect to question their competence, legality, independence and impartiality,” the body said.