Fellow Since 2006
This profile was prepared when Margarita Griesbach was elected to the Ashoka Fellowship in 2006.
Margarita Griesbach is improving the Mexican legal system by bringing cases before the Supreme Court that highlight procedural flaws, contradictions, and mistakes in the justice system. The Court’s rulings then provide guidelines that protect all parties in future cases and pave the way for systemic reform.
The New Idea
Margarita is taking advantage of a historic restructuring of the Supreme Court and the judicial system to push for important procedural reforms in how cases are tried. Using “paradigmatic cases” involving children’s rights, Margarita has begun to build a judicial system that will benefit victims. In one important success, Margarita used the case of sexual abuse of a young girl to pave the way for victims across Mexico to appeal trials where procedural rights are violated, an action which was previously forbidden.
An estimated 20 percent of crimes go unreported in Mexico, and when they are reported, only about 4 percent proceed to trial. The judicial system’s procedure to help victims is inadequate. Few tools are available for victims to defend their rights. They are represented by Public Prosecutors, but do not take part in their own proceedings. If they are asked to testify, they do so in intimidating conditions. Any evidence that does not comply with strict requirements is thrown out, and as a result many cases do not even include the written statements of victims. Worse, when a victim loses, even when the loss is due to the obvious incompetence of the prosecutor, the system provides no recourse. This scenario is aggravated when the victim is a minor, given the total absence of procedural adaptation for child victims.No one has challenged the system because there has been no mechanism to do so: the Supreme Court, as a constitutional court, is technically set up for this function, however few cases of procedural violation are set before it because victims have been denied access to appeal before constitutional courts. Although it is well known that the system for the provision of justice is not working well, few have even taken concrete action outside the political realm to demand a better system. In large part, civil society has ignored the problem because the Supreme Court has been controlled by the executive branch for the entire length of the republic’s history. It was only a decade ago that the Supreme Court was restructured to have true autonomy. Organized groups demanding justice have done so through political or legislative means, often relying on media and publicity of truly scandalous cases to demand change. But the opportunity for public attention is limited, and even the well-covered incidents set no precedent for future cases. Those opting for legal means, and with the funds to do so, have generally opted for outside courts, particularly those in the inter-American system, to achieve ends that seemed impossible from within.
Margarita founded the Office of Advocacy of the Rights of Children (ODI), to pursue a small number of strategic objectives which will open the door to a new set of rights promised but never granted to citizens under Mexican law. These three technical changes to the law will impact the processes and procedures of the judicial process in critical ways. The first (which she’s already achieved) allows victims access to the amparo, or constitutional proceedings, that open the door for victims to bring grievances against the judicial process. The second involves the right to adequate procedure, giving the right to testify under adequate conditions. And the final is the area of jurisprudence, establishing the Supreme Court’s responsibility for hearing particular cases. Once Margarita identifies the procedural changes she wants to implement, she starts to look for legal claims to evidence the absurdity of current proceedings. Here is where her ingenuity and that of her team start working. They have to substantiate the case with a contradiction within legal proceedings or the current body of law. After finding legal arguments to file with the Supreme Court, they start looking for victim cases to evidence their claims. They start in Trial Courts and do their follow up until they reach the expected results that will allow them to finally set out their claims before the Supreme Court.One important success provides an example. Young Maria is sexually abused by her teacher. As dictated by judicial process, she reports the crime to the Public Prosecutor (Ministerio Público or MP), who is entirely responsible for carrying forward the case. As is common, the MP fails to include much of Maria’s testimony in her file and does no further investigation. Maria looses the case, but under current process, she is not permitted to appeal, as victims have no right to appeal based on faulty process. Other civil society groups would consider the case lost or begin appealing to the press, but Margarita utilized the narrow terms which permit the Supreme Court to consider the case. She presented a “contradiction de tesis” to the Supreme Court, arguing that there is a contradiction between two jurisprudential standards, the first giving victims the right to representation and the second forbidding victims from appealing their cases to constitutional courts when their procedural rights have been violated. The Supreme Court ruled favorably in the case, and victims in Mexico today now have the right to appeal. Once procedural elements are changed by the Supreme Court, they are applied in all courts of law of the country. However, Margarita knows that this is not enough to be translated into better justice for the victims. She has started a series of training courses and partnerships aimed at different audiences. For example, she has plans to train MPs in Chiapas on compliance with regulations laid out by her recent victory at the Supreme Court. In the same way, when Margarita achieves the second of her three strategies, she will be prepared to train MPs in relevant procedures. She has already begun preparing manuals on proper procedure for taking statements from and working with children. The Supreme Court has asked Maria to host a series of conferences for its clerks and staff, familiarizing them with the structural legal impediments her association addresses. Margarita is also building a training program for grassroots and other groups that work directly with victims. In many cases, legislative changes will be necessary to operationalize legal changes proceeding from Supreme Court cases. This work is being done in partnership with groups skilled in lobbying and legal writing. With so much technical legal work, it is surprising that Margarita herself is not a lawyer. Interestingly, she believes that this has helped her. While a lawyer might look at a problem and deem it impossible to fix, Margarita has always believed that when the law is truly absurd, there must be a solution. So instead of settling for “no” she pushes her creative legal team until they come up with a strategy, regardless of the complexity or time needed. She has been known to tell her team of lawyers: “Keep on thinking, and do not come back until you have found a solution.”ODI is structured to capitalize effectively on the human resources needed for such an effort. Margarita has recruited some professional and highly creative legal talents from her country to do the inventive and specialized work. The gaps in their work are filled in by steady stream of students from a clinic she co-created with the Centro de Investigación y Docencia Económica (CIDE), a leading university legal program. In the process, new minds are being trained to think differently about the possibilities of the Mexican justice system. This efficient use of human resources is only one strategy for keeping costs low and maximizing ODI’s impact. In an effort towards sustainability, many of ODI’s services are provided for a fee to the government or private institutions.
Margarita was brought up in Mexico and the United States, since her father is American and her mother Mexican. She started teaching kindergarten when she was 15. She remembers that at the beginning it was not at all easy to manage her young pupils. Later, she had the opportunity to work in Texas in a psychiatric hospital while studying special education.In Mexico, Margarita joined Ednica, an organization servicing homeless children. She became the director and stayed for 10 years. Margarita was in charge of going with the children to file charges before the public prosecutor in cases of abuse. She was frustrated with the little she could get from the system of justice to defend the rights of minors.When she left Ednica, Margarita founded an organization for the promotion of social investments. However, people still contacted her for advice in the defense of minors before the court system. She does not consider herself an expert on the topic, but she says, smiling: “In the land of the blind the one-eyed man is king.” She decided to go back to defend victims, founding ODI with CIDE’s support.