The News Mexico
December 4, 2001
By Reed Lindsay

After the release of a report last week detailing hundreds of forced disappearances during the 1970s, President Vicente Fox and Interior Secretary Santiago Creel announced the creation of a special prosecutor, vowing to bring those responsible to justice.

Saying he wanted to "go beyond the idea of a truth commission," Fox said "we must aspire not only to find out the conducts and ommissions of the past, but also to sanction them."

But the bold promises of the Fox administration to "punish the guilty" belie an adverse legal reality that could doom the prosecutor's investigation before it begins, criminal law experts say.

Besides the difficulty of investigating crimes more than 20 years old in a nation with a justice system notorious for letting high-profile criminals off the hook, the special prosecutor will face a more immediate challenge: the statute of limitations.

In Mexico, the statute of limitations is determined by finding the average of the low and high marks of the sentence the crime carried when it occurred. For example, first degree murder carried the longest prison sentence of any crime -- between 20 and 50 years -- in the 1970s and 1980s, and therefore has a statute of limitations of 35 years, according to Carlos J. M. Daza Gomez, an expert in criminal law at the National Autonomous University (UNAM).

Although prosecution would proceed in the case of first degree murder, dirty war criminals likely have already escaped lesser charges carrying lighter sentences, such as kidnapping or abuse of authority, said Daza.

This is particularly relevant given the lack of evidence that could substantiate a murder conviction.

While the report detailing disappearances handed Fox last week by the National Human Rights Commission (CNDH) documents illegal arrests and torture, it does not indicate where the disappeared were murdered and buried.

According to Raul Carranca y Rivas, a law professor at the UNAM (UNAM), the statute of limitations could be bypassed temporarily as long as the victims are considered to be disappeared, and not victims of other crimes.

But the moment the crime is determined, the statute of limitations would be invoked and the investigation would be forced to stop.

Human rights groups, however, contend that the disappeared should be considered victims of a crime against humanity, precluded from the statute of limitations by international accords.

Although Mexico has signed but not ratified several of these accords, the special prosecutor should be obligated to take into account Mexico's intention to ratify them as the investigation is carried out, said Oscar Gonzalez, president of the Mexican Academy of Human Rights.

But even if these accords are ratified, they will not necessarily apply in the case of the disappearances due to a retroactivity clause in the Constitution, said Daza.

"Forced disappearance" was included in the Mexican penal code last June, but Article 14 of the Constitution forbids the retroactive application of any law.

Torture was not considered a crime either when the crimes were committed, said Daza.

The day of the announcement of the special prosecutor, Fox conceded in an interview that those responsable for disappearances during the dirty war might never serve jail time.

"And if the law prohibits the guilty from being punished in jail, it will not save them from the moral, ethical, political punishment that comes from public knowledge of their crimes," Fox told the NY Times.