Faced with the voices that defend the existence of an autonomous prosecutor's office as a remedy for the insecurity that our country is experiencing, the author maintains, from the perspective of the criminal procedure, that regardless of whether the prosecution can depend on the Executive, the important thing is that it the legal tools to defend their decisions.
In various scenarios, the issue of “autonomous prosecution” is recurring, which some associate - among other things - with insecurity and criminality. Others claim that its creation is indispensable, because the so-called "new criminal justice system" does not work. They ask about who should make the proposal for the appointment of the prosecutor, because it is an autonomous administrative body. For some others, the prosecutor should not depend on the head of the Executive, as the investigation must be impartial and alien to all kinds of "biases"; the latter, with spaces in the media and social networks, for day-to-day events.
In this regard, we express our opinion from an academic perspective and with a focus on criminal procedure, within the framework of the National Code of Criminal Procedures that since June 2008 began to govern criminal procedural life in Mexico, gradually and, as of June of 2016, in total form.
Initially, it is essential to establish that the opinions that refer to the need to have an autonomous prosecutor's office, due to insecurity issues, although we respect them we do not share them, for the elementary reason that one thing is public safety (before the commission of a crime), and another, the investigation, in which the prosecution intervenes. It is essential to insist, as we limit it in professional practice, in the classroom and in other works, that we must separate five aspects: crime prevention, public safety, investigation, justice delivery and social reintegration. Then, it is not possible to affirm that various problems related to the role of other authorities correspond to the prosecution.
In relation to the idea that it is necessary to create an autonomous prosecutor's office, on the grounds that the new criminal justice system does not work, we do not share it at all, although we keep the highest regard for those who think otherwise.
To contextualize, and with the idea of giving the approach to the topic that we leave here for your kind consideration, we will say that, before the prosecution of the accusatory criminal process, while the complainant warned that, in his opinion, the investigative institution ( that is, the Public Ministry) did not act, could invoke the protection and protection of federal justice. In addition, when that authority resolved the investigation, in the preliminary investigation file, it should notify the complainant in the event of determining the reservation or non-exercise of the criminal action. The foregoing, so that he was able to be unconformed, if he thought so conducive. If he did not prosper that nonconformity, he could resort to the principle of definitiveness in order to be able to demand protection.
This allows us to establish that in the procurement of justice, in the context of the traditional system, it was possible to limit the function of the Public Ministry through the establishment of a “counterweight”, if the reader allows me the expression, because the ministerial determination — dependent on the Executive - was subject to the scrutiny of the Federal Judiciary, by constitutional means.
It is important to establish that some colleagues (not all, as there are very professional lawyers who deserve all our greatest consideration and respect), when not satisfied with the determination of the reservation or the non-exercise of the criminal action, did so with the reproduction of the letter of complaint, on the grounds that it had not been addressed; without pointing out - once they knew the determination - the diligence that, in their opinion, the Public Ministry did not practice or if this or that line of investigation was not exhausted. Simply, they interposed the disagreement in a generic way and in passing they expedited the process to go before the judge of guarantees. Thus, what they did not obtain from the Public Prosecutor's Office is sought by a constitutional court.
In relation to the above, we met lawyers who, even, chose to go to the administrative entities of the prosecutor's office or the prosecutor's office with a complaint because they had not been “taken care of”, or to the National Human Rights Commission (or other of any federal entity); We insist, without any contribution to the investigation. And in that, we believe, is the heart of the matter. Right there, because the civilist, labor, mercantilist lawyers - among others - have the responsibility to go before the authority to raise their issue based on the study that they should have done in response to the approach and the need of the person who consulted them, and as a strategy to litigation, for their knowledge and mastery of the subject, which at times seems not to happen in criminal matters and everything remains in the hands of the Public Ministry, which
Once we switch to the accusatory criminal system - regarding the intervention of the victim's or offended lawyer - the scheme seems to be repeated. In the third edition of The sequence of the criminal procedure in the National Code I referred to the "acts of the Public Ministry subject to control." There I dealt with article 258 of the National Code, "Notifications and judicial control", whose title can not be clearer, because it is a judge who must carry out acts of "control" by the investigations of the Public Ministry, as: there is refraining from investigating, the temporary file is resolved, an opportunity criterion is applied and the non-exercise of the criminal action is dictated.
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