Access to justice, victims' rights, and private prosecution in Latin America: the cases of Chile, Guatemala, and Mexico.

Abstract

My dissertation explores how and when legal rights affect the effectiveness of the rule of law in developing democracies. Over the past two decades, many countries in Latin America have adopted far reaching judicial reforms, including criminal procedure reform. Judicial systems in the region have long been perceived as offering little recourse to common citizens, especially for marginalized groups. The new judicial reforms were designed to make these institutions more responsive and effective. One key way they attempt to do so is to introduce/enhance provisions for private prosecution of criminal cases. By giving the victim or their surviving relatives a right to participate in the criminal proceedings, private prosecution can, in theory, serve as a societal check on an unresponsive state. But does it? Through a comparative study of ordinary homicide cases (i.e., when the crime is committed by ordinary citizens) and human rights cases (i.e., when murder is committed by state officials) in Chile, Guatemala and Mexico, my dissertation examines (1) where this right came from and how it got diffused in Latin America, and answers (2) if these rights are actually used, and (3) when, how and why private prosecution makes a difference in the state's investigation and prosecution of murder. Following a nested research design, I work at two levels of analysis: countries and individual legal cases, allowing comparisons within judicial districts, across types of homicides, and across countries. I argue that the introduction/expansion of private prosecution in recent reforms has to be understood as the result of the consolidation of victims' rights in international law. However, international and ideational factors matter both for shaping choices of judicial reform, as well as for the mobilization of legal rights. Through an analysis of 520 homicide cases, 450 human rights cases, and various case studies, I also argue that the use and impact of private prosecution on judicial responsiveness depends primarily on (i) the history of the right in a country, (ii) the development of a support structure, and (iii) the socio-political context. I further argue that private prosecution can be used to build the rule of law from below when societal actors embrace it as a tool to fight unresponsive or inefficient judicial systems. My dissertation begins with an introductory chapter where the main argument, findings, and research design are explained. The next two chapters explain what private prosecution is and how this right diffused across Latin America. Then in a fourth chapter I provide the main findings of the use and impact of private prosecution in human rights cases across Latin America and in ordinary murder cases in Chile, Guatemala, and Mexico. Finally, in the last three empirical chapters I explain how private prosecution matters to judicial responsiveness through an in-depth analysis of human rights and ordinary murder cases in Guatemala, Chile, and Mexico.