These lawyers want to change how Mexico thinks about corruption

MEXICO CITY (CN) — When Irma Berrocal's pipes ran dry for over a month and she was forced to buy water from a local mafia that taps public lines in broad daylight, it was not the Ecatepec water authority that suffered. Rojas had already paid her annual bill.

The administration of the Mexico City Metro did not go under when a section of elevated train collapsed in May 2021, killing 26 residents and wounding over 100 more.

When local authorities in Iguala, Guerrero, didn’t want pesky students from the Ayotzinapa teachers’ college to ruin their banquet in September 2014, 43 young men and their families paid the ultimate price.

Common sense may reason that the victims of government corruption are the citizens deprived of resources, services or security, but Mexico’s courts don’t see it that way. Legally, the victim in a corruption case is the affected government department.

Lawyers at Tojil, a Mexico City nonprofit that works to combat corruption, are trying to change that.

“The government thinks it has a monopoly on being the victim of corruption, that it is the only one impacted by it,” said Isaac Martínez, legal director at Tojil. “Since corruption deals with public money, the government understands the problem as one only affecting the state. But they confuse the term ‘state’ with ‘government,’ because the state is composed not only of the government, but also the population and territory.”

Using strategic litigation, Tojil is attempting to get Mexican courts — particularly the Supreme Court — to recognize society as the victim of government corruption. The recognition would allow individuals to collaborate with public prosecutors in the investigation of a corruption-related crime, present evidence and challenge the decisions of prosecutors, whose offices, Martínez said, “are often corrupt themselves."

Irma Berrocal López, a resident of Ecatepec, Mexico, holds a sign on on Feb. 7, 2023, telling Mayor Fernando Vilchis that she has gone a month without water in her home. (Cody Copeland/Courthouse News Service)

Legal scholars hail the initiative as one with real potential to make a dent in a criminal justice system riddled with impunity, cronyism and inequality.

This kind of strategic litigation “opens the door for society in general and citizen organizations to have a greater impact and create counterweights in the penal system,” said Javier Martín Reyes, a constitutional law professor at Mexico’s National Autonomous University.

Once citizens have an active role in the penal process, Tojil's Martínez noted, they can pressure prosecutors to keep cases open and continue investigations.

Mexico’s Supreme Court meanwhile is closing doors to that possibility.

A recent ruling from the court’s first chamber, which deals with penal cases, blocked the possibility of recognizing physical persons as the victims of corruption. The five-justice chamber ruled in February that the United Nations Convention against Corruption (UNCAC), to which Mexico is signatory, does not bind the country to recognize people reporting corruption-related crimes as victims or to allow their participation in criminal proceedings.

“The resolution constitutes a challenging obstacle that hinders social participation in the fight against corruption,” Tojil said in a statement responding to the ruling.

The UNCAC does not expressly prescribe that signatory states make this recognition, but the Tojil lawyers argue that it allows for such an interpretation, and that the high court’s decision did not adhere to Mexico’s Constitution, which states that justices and judges should interpret cases dealing with human rights in the broadest manner possible.

“This was a restrictive interpretation of a collective human right,” said Martínez.

There is still an avenue, however, for Tojil to reach its goal. The February ruling dashed hopes of getting physical persons recognized as corruption’s victims, but the possibility remains for the courts to grant moral persons, such as civil society organizations, that status.

Tojil has documented cases in comparative law that successfully recognized physical or moral persons as victims of corruption and brought about real-world change. It cites a landmark case in France against Teodoro Obiang, son of Equatorial Guinea’s longtime president, for embezzlement of more than $225 million.

Members of a legal team representing 12 of the victims of the May 2021 metro collapse in Mexico City set up flowers to memorialize the victims on May 3, 2022. The broken track of the elevated train looms overhead in the background. (Cody Copeland/Courthouse News Service)

By allowing civil society organizations to participate in the criminal proceedings against Obiang, Tojil argues, France’s high court opened the door for a lower tribunal to rule in favor of the plaintiffs. Obiang was sentenced to three years in jail and forced to pay fines and reparations of damage to the tune of tens of millions of euros.

These cases “created foundations to combat corruption or to promote more sustainable social development,” Martínez said. “It’s a very different perspective from what we have here in Mexico.”

That perspective does not end at the courtroom door, either. Tojil wants Mexican citizens at large both to consider themselves the victims of corruption and to take an active role in fighting it. But changing deep-rooted mindsets is never easy.

The idea that the government is the sole victim of corruption “has been sold and spread literally since the Roman Empire,” said Carlos G. Guerrero, co-founder of DLM, a civil society group that also uses strategic litigation to combat corruption. Though they have worked together on previous cases, DLM is not involved in Tojil's current litigation.

DLM’s work differs from Tojil’s in that it primarily pursues victim recognition in administrative, rather than penal cases. But their goals coincide.

Guerrero expects social participation in the legal fight against corruption to promote accountability in the government.

“In Mexico we have one of the best regulatory frameworks for preventing, investigating and sanctioning acts of corruption,” he said. “But the reality is that despite this regulation, we don’t have autonomous, independent authorities or the political will to execute it.”

In its February ruling, the high court interpreted UNCAC guidelines to promote social participation in the promotion of the fight against corruption and the prevention of it, but not directly in the legal battle against it.

Families of the victims of the Ayotzinapa massacre of September 2014 march in Mexico City on Aug. 26, 2022. (Cody Copeland/Courthouse News)

To say that the battle, in the event that Tojil succeeds, will not be easy is an obvious understatement. The Mexican government has not taken kindly attempts to impose the rule of law on a political class accustomed to malfeasance and leeway.

Many turn-of-the-century attempts at institutionalization, such as the creation of the National Electoral Institute and Mexico’s transparency agency, have come under fire during the administration of President Andrés Manuel López Obrador.

“The political class needs illegality in order to accommodate a reality that does not fit into the law,” said Fernando Escalante Gonzalbo, an international studies professor at El Colegio de México, a public university in Mexico City.

Creating laws that apply to all is difficult in Mexico because, as Escalante put it, the heterogenous and inequitable nature of its society “causes different social groups to live almost in different centuries.”

“Obviously, what could be done is to design laws capable of seeing to that heterogeneity,” he said.

Given the gap between the law and its enforcement in Mexico, Escalante also recommended the creation of an autonomous public prosecutor’s office that focuses solely on fighting corruption — one that is “independent, professional and serious, with sufficient resources and a qualified, committed staff” that is capable of enforcing the law equally on all citizens.

“As long as there is no such thing, the Mexican state will have a precarious existence vis-à-vis the political class,” he said.

But Martínez is determined not to let possible future roadblocks deter Tojil’s efforts in the courts. Neither does he let the legalese distract him from the real reason he chose this endeavor.

“In Mexico, corruption is calculated in lost lives,” he said.

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Categories / Government, International, Law

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These lawyers want to change how Mexico thinks about corruption

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