Untitled - Biblioteca - Suprema Corte de Justicia de la Nación

Transcription

First edition: november 2007
All rights reserved. © Supreme Court of Justice of the Nation
Av. José María Pino Suárez, No. 2
C.P. 06065, México, D.F.
ISBN 970-712-812-5
Impreso en México
Printed in Mexico
Translator: Lic. Julian Bunster Ariztia
Supervised: Dr. Manuel González Oropeza
The edition of this publication was made by the General Management of the
Coordination on Compilation and Systematization of Thesis of the Supreme
Court of Justice of the Nation.
(2003-2006)
SUPREME COURT OF JUSTICE OF THE NATION
Justice Guillermo I. Ortiz Mayagoitia
Chief Justice
First Chamber
Justice José Ramón Cossío Díaz
Chief Judge
Justice José de Jesús Gudiño Pelayo
Justice Olga Sánchez Cordero de García Villegas
Justice Juan N. Silva Meza
Justice Sergio A. Valls Hernández
Second Chamber
Justice Margarita Beatriz Luna Ramos
Chief Judge
Justice Sergio Salvador Aguirre Anguiano
Justice Mariano Azuela Güitrón
Justice José Fernando Franco González Salas
Justice Genaro David Góngora Pimentel
Publication and Educational Promotion Committee
Justice Guillermo I. Ortiz Mayagoitia
Editorial Committee
Mtro. Alfonso Oñate Laborde
Technical Juridical Secretary
Mtra. Cielito Bolívar Galindo
General Director of Thesis Compilation
and Systematization Bureau
Lic. Gustavo Addad Santiago
General Director of Diffusion
Mtro. César de Jesús Molina Suárez
General Director of Houses of
Juridical Culture Historical Studies
Dr. Salvador Cárdenas Gutiérrez
Director of Historical Research
INDEX
Foreword ................................................................................
XXV
October 2003
A restated tax sanction imposed by the authorities based on
the Miscellaneous Resolutions must be grounded only with
regard to the restated portion ................................................
1
November 2003
Whenever tax authorities authorize repayment of a credit
balance but incorrectly determine its restatement and the
taxpayer requests repayment of the difference and obtains
authorization, interest payment shall be calculated as of the
maturity date of the period mentioned in paragraph three,
Article 22 of the Federal Tax Code —but only with respect to
the initial amount outstanding ...............................................
5
March 2004
Criteria to determine whether or not the execution of an
amparo decision is excusable ................................................
7
V
VI
August 2004
Considerations on the principles of tax proportionality
and legality, as well as performance of the Federal Tax and
Administrative Court .............................................................
11
The First Chamber of the Supreme Court exercises its powers
to attract direct amparo 466/2003 ........................................
15
Study of infringement items determining granting of direct
amparo shall abide by the principle of the higher benefit. The
benefit of those who, although grounded, are not better than
those achieved by claimant may be omitted —including those
referring to the constitutionality of laws ................................
19
October 2004
An incident related to notice nullity during labor proceedings
shall be started within a generic 3-working day term, as
established under Article 735 of the Federal Labor Law,
starting the moment the aggrieved party learns or becomes
aware of the proceeding affecting that party, including
maturity date ..........................................................................
21
Should alteration of a credit instrument be accredited in its
amount, but debtor acknowledges an amount other than that
undertaken, the debtor may be convicted for this charge in
the same proceedings ............................................................
25
Assignment does not become effective with respect to assets
acquired after attachment, but before obstacles are registered
in the Public Registry of Property .........................................
27
Article 234 of the New Criminal Code for the Federal District
does not breach the criminal law guarantee of accurate
enforcement ...........................................................................
31
VII
Upon the request of Attorney General, the First Chamber of
the Supreme Court attracted the case surrounding the events
of June 10, 1971 ...................................................................
33
Owners of lots located in land confirmed or recognized that
belongs to an agrarian community that holds duly formalized
title deeds, are not required to support qualified ownership
as established under Article 252 of the derogated Agrarian
Reform Law ...........................................................................
37
The Value Added Tax payment form applicable to taxpayers
under the general tax regime and to minor taxpayers does
not infringe the principle of tax equity ..................................
41
Article 2-C of the Value-added Tax Law, effective as of January
1, 2004, does not infringe the principles of proportionality
and tax equity ........................................................................
43
Suspension of the claimed act shall be dismissed whenever
transport service concession holder makes a related request
against the detention of the vehicle used to render such service
for not fulfilling the appropriate legal requirements. (Article
70 of the State of Puebla Transportation Law) .....................
45
November 2004
Ar ticle 87 of the State of Oaxaca Municipal L aw is
unconstitutional .....................................................................
49
The Supreme Court decides on the nullity of transitory articles
six of the Federal Income Law for the 2002 and 2003 tax is,
and transitory article four of the same law for the 2004 tax
year as a result of contravening the Federal Constitution ....
53
The First Chamber of the Supreme Court decides on the scope
of the right to defense during the preliminary investigation .
57
VIII
Article 29, Section VII of the Value Added Tax Law, effective
as of the 2004 tax year, respects the principle of tax equity and
legality ....................................................................................
59
All norms contained in the decree amending and adding to
Articles 100 and 102 of the Traffic Regulations, respectively, and
the notification of implementation of the Program for the
Control and Preclusion of Driver Alcohol Consumption, both
to be implemented in the Federal District, as published in the
Official Gazette for that district on September 18, 2003, cannot
be the object of amparo claims merely because of their
effectiveness ...........................................................................
63
The fact that the company that is the object of a lawsuit is
on strike must not be taken to mean that its job offerings
are in bad faith .......................................................................
65
The amparo granted due to the formal unconstitutionality of
a law has limited effects on Articles applied to the claimant,
and is not effective for the totality of the law ........................
67
Ar ticle 204-B of the Federal District Financial Code
establishing water and drainage network usage rights derived
from authorization, or those governing their modification,
are in violation of the principles of tax proportionality and
equity. (Current legislation as of 2003) .................................
71
December 2004
Corporate entities are empowered to sue for repair of moral
prejudice whenever the consideration in which they are held
by others is affected ...............................................................
73
Article 29, Section VII of the Value Added Tax Law, effective
as of 2004, does not breach the principles of tax equity and
legality ....................................................................................
75
IX
A tax rebate is in order whenever a request is grounded on
the response to a tax inquiry that determines the inadmissibility
of the regulation requiring the tax payment because the
unconstitutionality of the tax is in question, provided that
the payments are made subsequent to the inquire ...............
79
The Chambers of the Federal Tax and Administrative Court
are empowered to analyze by operation of law not only the
lack of power of the authority issuing the contested resolution
but also that of the party responsible for ordering or processing
the case leading to such resolution .......................................
81
Provisional alimony may not be canceled while a decisions
is made on the claim filed against the order that decrees the
same (legislation of the State of Veracruz) ............................
85
January 2005
Simple theft between spouses is materialized even if applied
to community property. (Chiapas and Guerrero legislation)
87
Suspect has legal interest to file an indirect amparo trial against
refusal of the Prosecuting Agency to pronounce execution or
discontinuance of the criminal action ...................................
91
For conflicts related to the possession of communal lots, the
Agrarian Court shall look into its generating cause, if parties
bear no agrarian title supporting the rights to the lands in
dispute ....................................................................................
95
No appeal is inapplicable against executory writs issued in an
indirect amparo trial, when appellants manifest themselves
as non-summoned, aggrieved third parties ...........................
97
February 2005
For the admission of the order related to the loss of parental
rights and duties due to repeated failure to meet the alimony
X
obligation, establishing that the health, safety or morality
of the offspring and the prior establishment of alimony is not
required ..................................................................................
101
The Second Chamber of the Supreme Court rules on the
constitutionality of five Articles of the Federal District Commercial
PremisesOperation Law ........................................................
107
The employer-employee relationship in the case of state workers
is evident when the services rendered have the characteristics
of a employer-employee relationship, even if a professional
services agreement has been executed .................................
111
Suspension in direct labor amparo lawsuit shall be denied with
respect to the payment of benefits in kind established under
the Mexican Social Security Act in favor of a worker suffering
occupational hazards to ensure their subsistence, in terms of
Article 174 of the Amparo Law .............................................
115
Because it is an integral part of the award, clarification may
be sought through direct amparo proceedings ......................
117
Articles 10 of the National Military Service Law and 38 of its
regulations, by setting forth exceptions with respect to
compliance with the military service, do not breach the equity
guaranty .................................................................................
121
The measures established under constitutional Article 107,
Section XVI are not applicable to the Secretary of Agrarian
Reform whenever failure to comply with such resolution is
excusable ...............................................................................
123
The Property Tax Reform included in Article 152, Section I,
of the Federal District Financial Code, effective as of January
1 st , 2004, does not provide for claims against the
unconstitutionality of Ar ticle 149, Section II of such
XI
regulations regardless of whether its application has been
previously accepted ...............................................................
127
March 2005
Articles 78 and 84 of the Public Employees Law contravene
the principle of union freedom set forth in Article 123,
subparagraph B, Section X of the Federal Constitution .......
129
The share corresponding to the federal government from
profits obtained by citizens authorized to organize raffles or
draws is not considered exploitation but a tax regulated by
in constitutional Article 31, Section IV ..................................
131
The legislature of the State of Aguascalientes is empowered
by the constitution to issue the law governing the sale and
consumption of alcoholic beverages .....................................
135
All roads, highways, and bridges linking two or more states,
or connecting with any roads of a foreign country, are subject
to federal jurisdiction. Therefore, the Federal Government
needs no authorization from the local Congresses for their
construction ...........................................................................
139
The legislature of Nayarit has the powers to establish the
amounts whereby city councils are exempted from the public
bidding procedures for the acquisition of goods and services
143
The Supreme Court rules in favor of nullifying various
electoral provisions in the State of Veracruz .........................
147
The Supreme Court acknowledges the validity of Article 32,
paragraphs one and three of the Constitution of Aguascalientes,
whose amendments are included in Decree number 101,
issued by the local congress and published in the Official Gazette
of the state on July 21, 2003 ................................................
151
XII
Autonomous action to demand alimony is admitted,
notwithstanding the name assigned to it and prior existence
of a covenant executed in such sense within a trial for divorce
by mutual consent .................................................................
155
Article 693 of the Federal District Civil Procedures Code,
effective as of 2004, by establishing the obligation for the
appellant to bear all costs related to the copies required to
present related testimony as a requirement for the
admission of the appeal, infringes Article 17 of the Federal
Constitution ...........................................................................
159
Article 34, paragraph two, of the Federal Tax Code, effective
as of 2004, complies with constitutional Article 8 ................
161
Power of the Honor and Justice Commission to decide on
the dismissal of members of the Federal Preventive Police
due to unjustified absences is ascertained ............................
165
April 2005
University autonomy may only be granted through a formal
legislative act to public universities .......................................
167
In the direct amparo under examination, charges aimed at
proving the unconstitutionality of the provisions applied in
the decision may be made notwithstanding the existence of
a previous direct amparo .......................................................
171
The inspection powers of the Auditor General are governed
by the principle of yearly income and are limited to the financial
administration of the inspected agency .................................
175
At the contentious administrative proceeding, notification of
the decision granting a 5-day term to bring forth allegations in
writing, shall be made to the parties in the form of a posting
XIII
—including all administrative authorities involved, in terms
of Article 235, paragraph one, of the Federal Tax Code ......
177
The bench of the Court upheld the constitutionality of various
articles from the State of Nayarit Law of the Auditor General
179
The constitutionality of the decree amending and adding
various articles to the Constitution of the State of Jalisco is
upheld ....................................................................................
183
Article 109, Section XXVIII of the Mexican Income Tax Law,
effective as of 2003, by excluding the exemption for authors
handing over their works to a third party for dissemination
in the form of movies, radio, theater, and TV, encroaches the
principle of tax equality .........................................................
187
May 2005
The Supreme Court decides in favor of the constitutionality
of the Federal District Citizens Participation Law .................
191
Access to preliminary investigation proceedings by the
authorized parties does not imply the right to issue copies.
It suffices for the corresponding dossier to be made available
for consultation ......................................................................
195
Articles 30 and 31 of the Foreign Trade Law, as well as Article
37 of its Regulations do not contravene the principles of
legality and legal certainty established under constitutional
Articles 14 and 16 .................................................................
199
Any notification of rescission of a labor relationship must be
handed over to a worker within a one-month term, or
otherwise presented before the board in the 5 days following
the day on which actual reception has been refused.
Otherwise, prescription of the law corresponding to employers
shall prevail ............................................................................
203
XIV
Amparo authority is granted by the District Judge in whose
jurisdiction the claimant is being held whenever the
administrative authority fails to provide for the advanced
release petition .......................................................................
207
The judge shall individually assess whether granting the
corresponding guaranty of final suspension for provisional
alimony reduction is admissible, in order to ensure the
subsistence of both the beneficiary and the alimony debtor
211
The President of the Republic is empowered to make
observations on the decree of Federal Budget ......................
215
The type contemplated under Article 112 bis, Section IV of
the Credit Institutions Law is not updated when the active
subject acts before jurisdictional authorities in legitimate
exercise of his profession in order to enforce the property
rights of his principal .............................................................
219
Veto may not be exercised for legislative orders related to
the Auditor General (Legislation of the State of Tabasco) ...
221
Whenever amparo proceedings are late with respect to the
first act of application of a self-applicative law, it is also late
in association in relation to the law, even if the 30-day
objection term has not elapsed .............................................
225
June 2005
Any decision imposing a treatment during confinement
measure for young offenders shall set forth its duration in a
specific and particularized manner ........................................
227
The Ministry of Health may classify chemicals as psychotropic
or narcotics, based on the international standards signed for
such purpose, provided that such standards are in conformity
with law currently in effect in our country ............................
231
XV
Article 23 of the Federal Economic Competition Law does
not breach the principle of hierarchical subordination of all
decentralized bodies belonging to the centralized Federal
Public Administration, as established under Article 90 of the
Federal Constitution ..............................................................
233
In labor suits, the transitory attachment issued in the first
place has preference, regardless of any award acknowledging
another employer debt first ...................................................
237
Whenever there is a conflict of law between penalizing norms
prescribing the application of more than one sanction, the
judge may not divide such sanctions ....................................
241
Effects of the rescission of purchase-sale (application of
Articles 1840 and 2311 of the Federal District Civil Code) ..
245
The granting of suspension of social security fees with respect
to those derived from the application of Article 237 of the Social
Security Law, effective as of July 1, 1997, is governed by Article
135 of the Amparo Law. .......................................................
249
Key employees are those who exclusively and permanently
carry out auditing activities and have budgetary dependence
on the body entrusted with such duties, regardless of the formal
name given to their position ..................................................
255
Prescription of the crime of genocide ....................................
259
Crimes against health —more specifically—, smuggling narcotics,
contained in article 194, Section II, of the Federal Criminal Code
materialize upon commission in the exclusive economic zone.
265
The Court determines that various articles of the Federal
Consumer Law relating to the sale of real estate for housing
and time sharing are constitutional. ......................................
269
XVI
Article 49, section i of the Federal Duties Law is unconstitutional
because it takes into account factors other than those that should
be considered for the imposition of a tax for public services
273
Persons that hold or present documents authenticating the
ownership of a foreign vehicle may be found guilty of vehicle
smuggling upon failure to produce the appropriate permit ..
277
The Supreme Court annulled the official documentation
issued by the General Auditor of the Federation requiring
nonpayment of the debt abnormally entered by various banks
for this is considered to represent an invasion of the powers
of the Executive .....................................................................
281
It is unconstitutional for the Tax Code for the Municipality of
Veracruz to set forth that City Council officers responsible
for administering resources are compelled to pay bonds from
their own money in order to secure payment of liabilities
incurred during the course of their duties .............................
285
The Supreme Court dismisses Amparo proceedings instituted
by Benjamín Arellano Félix against the Organized Crime
Prevention Law ......................................................................
289
July 2005
The Mexican Supreme Court specifies the scope and
characteristics of State Laws and Municipal Regulations .....
293
Real property in favor of the beneficiaries of a deceased worker,
as designated by the Board of Arbitration may be registered
with the Public Registry of Property without the need to
formalize appropriate adjudication through a public deed ...
297
Holding a creditors meeting for the signing of any agreement
is inadmissible whenever loans still to be acknowledged
through a final decision exist .................................................
301
XVII
Judges must assess the specific circumstances of a defendant
and the commission of the offense when establishing the
imposed on a suspect under parole ......................................
303
August 2005
It is admissible to fine Prosecuting Officers who file complaints
without reason .......................................................................
307
Decision 2/2000 of the Joint Council for the Interim
Agreement on Commerce and Related Matters between the
United States of Mexico and the European Community is
constitutional .........................................................................
311
Amparo Proceedings are not the means of challenging laws
or acts relating to the exercise of political-electoral rights ....
315
All interventions excluding property or interest or credit
preference in labor matters are lawsuits by nature and not
incidents, meaning that the resolving decision may be
challenged through a direct amparo ......................................
319
The Electoral Law of Jalisco does not violate the internal
operation of political parties ..................................................
323
The First Chamber of the Court specifies the field of application
of the right to tax equity ........................................................
327
Admissibility of suspension of amparo proceedings against
all acts of registration or inscription of the temporary
disqualification of public officials ..........................................
331
Article 194 of the State of Mexico Criminal Code does not
infringe the right to legality, assembly, association and
freedom of movement ...........................................................
333
XVIII
Grounds and motivation for competence resolutions must
be analyzed in light of Articles 14 and 16 of the Mexican Political
Constitution, respectively ......................................................
335
September 2005
The bench of the Supreme Court, pronounces on the
legislative process, life imprisonment, and arrest in state law
Chihuahua .............................................................................
339
Bonds granted under public work agreements are enforceable
even if the respective means of objection challenging the
validity of the rescission decreed through noncompliance by
the principal obligor have not been acknowledged, except
when the principal debtor obtains suspension or when the
policy states otherwise, and the law contemplates a related
resolution ...............................................................................
345
Article 403 of the Federal District Civil Procedures Code
relating to the evidentiary value of public documents does not
infringe the right to a hearing ................................................
351
Whenever an act contested consists of the resolution rendered
in the determination of admissibility proceedings whereby
the House of Deputies of the Congress of the Union decides
to withdraw procedural immunity and remove a public official
from duty, an Administrative District Judge is required to hear
the amparo trial .....................................................................
353
The supplementary application of Article 878, Section VII
of the Mexican Labor Law to the State Workers Law is valid
provided that the dispute in question arises between the
parties derived from a relationship equivalent to a labor
relationship or facts closely linked to such relation ..............
357
Students in the course to enter the office of the Federal
Prosecuting Authorities have standing to contest their retirement
or separation through an amparo ..........................................
359
XIX
The Supreme Court validates the creation of the Municipality
of San Rafael in the State of Veracruz ..................................
363
In amparo proceedings against laws, reinstatement of the
proceedings must be ordered in the event of a failure to
summon one of the Chambers of the Congress of the Union,
even if a decision has been laid down by the Supreme Court
on the unconstitutionality of the alleged norm .....................
367
The processing of the clarification of a decision does not
impede the institution of amparo proceedings against a final
decision, even when such a decision is still pending ............
371
All documents and reports obtained from the National
Banking and Securities Commission as part of a prior home
inspection visit procedure deemed invalid may be presented
by the tax authorities in future proceedings provided that all
related facts or omissions involving a breach of tax provisions
have been captured in detail in the respective partial records
373
The extinction term provided contemplated in Article 78,
Section II, of the Government Workers’ Liability Law is not
interrupted whenever the acts that give rise to the proceedings
and respective summons are declared null, given the existence
of formal vices .......................................................................
379
October 2005
Legislative omissions .............................................................
381
Article 202 of the Mexican Corporations Act empowering a
Judge to suspend the execution of decisions under dispute does
not infringe the right to hearing .............................................
385
Seniority premiums for key employees at the Petróleos
Mexicanos plant must be calculated based on their regular
wages .....................................................................................
389
XX
In an executive mercantile process, the litis comprises only
the writ of complaint and its response ..................................
393
The Federal Tax and Administrative Court must enforce
rulings on the unconstitutionality of laws whenever
applicable, without analyzing whether the acts or decisions
in dispute represent the first or a subsequent act of application
of the legal rules which serve as their basis ..........................
395
Title Twelve of the Bankruptcy Proceedings Law does not
favor foreign proceedings or law by granting equal treatment
to domestic and foreign creditors ..........................................
399
To accredit the offense of possession in drug related crimes
as contemplated under Article 195, paragraph one, of the
Federal Criminal Code, both the prosecuting authorities and
judge are required to specify the behaviors sought to be
carried out by the perpetrator in numeral 194 of said Code in
connection with the narcotics seized .....................................
403
November 2005
The Transparency and Access to Government Information
Law has no impact on constitutional Articles 14 and 16 .....
407
A tax review is valid against the decisions of the Regional
Chambers of the Federal Tax and Administrative Court
nullifying the administrative resolution on the responsibilities
of government servants, issued in terms of a federal norm other
than the Federal Law of Administrative Responsibilities of
Public Officials .......................................................................
411
The grounding and motivation requisites in the taxpayer
accounting requirement of the Federal tax authorities
established under Articles 16 of the Mexican Constitution
and 38, Section III of the Federal Tax Code, do not go as far
as requiring such an act to be based on Article 28 above, which
sets forth its related elements ................................................
415
XXI
It is necessary to attend to the genesis of the decision
contested and to decree the nullity established in Article 239,
Section III, last paragraph of the Federal Tax Code, in the
case of tax fines not fulfilling grounding and motivation
requirements ..........................................................................
419
The Supreme Court declares the nullity of various provisions
of the State of Colima Electoral Code ..................................
423
Unconstitutionality of Articles 55, paragraph two, and 57 of
the Constitution of the State of Colima .................................
427
Minors are entitled to request the presentation of expert DNA
genetic evidence to know their genetic origin and prove the
identity of their parents ..........................................................
429
Determination of the moment the offense of carrying a gun
is materialized ........................................................................
433
Active authorization permitting the claimant or victim to
institute amparo proceedings is not limited to cases expressly
mentioned under Article 10 of the related law but also covers
alleged violations of the rights contained in Article 20,
subparagraph B, of the Federal Constitution ........................
437
The admission and presentation of oral evidence by minors
at the divorce proceedings involving their parents constitutes
an act that is impossible to repair; consequently, indirect
amparo proceedings are admitted against the parents .........
439
The crime of rape is admitted between offender and claimant
even if a marital bond exists ..................................................
441
The concurrence of multiple homogeneous criminal offenses
of sexual abuse is updated whenever a variety of behaviors
XXII
is shown by the same offender against the victim on different
occasions ................................................................................
445
Establishment of the requirements for the refund of balances
payable by the tax authorities ...............................................
449
Transitory Article Six, Section II, of the Decree amending,
adding to, and nullifying different provisions of the Income Tax
Law published in the Federal Official Gazette on December 31,
1988, does not infringe the principle of tax proportionality .
453
Life imprisonment shall not be deemed a punishment that
goes against national custom and norms, meaning that, in cases
of extradition, the state requesting compulsory enforcement of
the penalty is not required to commit itself not to apply it ...
459
December 2005
The governor of the State of Baja California lacks the
constitutional and legal authority to reduce the expenses
budget prepared by the Electoral Court of the Judiciary of
that State, and it should not be lower than the budget of the
previous year .........................................................................
463
A claimant in administrative proceedings against noncompliance
duties of a public official lacks the standing to object by means
of amparo proceedings against theresolution declaring such
complaint as not enforceable ................................................
467
The Chambers of the Supreme Court have the jurisdiction to
resolve constitutional disputes even with respect to matters
of law whenever they involve the intervention of a municipality
and the unconstitutionality of a general is not challenged ...
469
It is admissible to grant a stay in amparo proceedings
contesting the declaration of compliance in favor of requiring
XXIII
members of the Mexican Army and Air Force to stop rendering
professional services due to illness ........................................
473
The right to defense in face of acts of expropriation must be
exercised prior to the definition of said acts .........................
475
Articles 262, Section VIII, and article 278, rule one of the
State of Durango Civil Code, infringe the rights protected by
constitutional Articles 4 and 22 .............................................
479
Article 10 of the International Extradition Law is not applicable
when an International Extradition Treaty between the United
Mexican States and the requesting state has been executed
483
February 2006
Scope of the interpretation of tax norms establishing the
essential tax elements relating to the constitutionality of taxes
in association with the constitutional principles of tax legality
and legal certainty .................................................................
487
Article 444, Section VII of the Federal District Civil Code
governing parental rights and duties abides by Articles 4.,
14, 17, and 22 of the Federal Constitution ...........................
491
It is the discretionary power of the Executive to hand a Mexican
citizen over to a foreign State ................................................
493
March 2006
The First Chamber of the Supreme Court makes a distinction for
Income Tax purposes between the loans obtained by related/
independent parties abroad and those obtained in Mexico .
497
May 2006
In related direct amparos, the motives for dismissal
contemplated under Article 74, Section IV, of the respective
XXIV
law are updated with respect to the second guarantee trial
whenever the respective authority nullifies the award sought
in compliance with the sentence passed at the first trial .......
501
June 2006
The Second Chamber of the Mexican Supreme Court lays
down jurisprudence on the requirements to qualify the
professionalorigin of an illness ..............................................
505
Bibliography ...........................................................................
509
FOREWORD
A common practice due to its unquestionable practicality, the publication
of relevant decisions by the Mexican Supreme Court now reaches its
fourth edition, following the publication of 75 Relevant Decisions of
the Mexican Supreme Court (1998), 100 Relevant Decisions of the
Mexican Supreme Court (Novena Época) (2000) and Relevant
Decisions of the Mexican Supreme Court (2004). On this occasion,
the edition includes a synthesis of decisions from October 2003 through
June 2006, whose transcendence may be attributed to their impact on
the national legal order.
As accustomed since 1998, each synthesis offers the core elements
to understand the decisions reached by the Bench or the Chambers of
the Supreme Court, with additional detail available in the form of the
accompanying CD-ROM including the full text of the related decisions.
There are also footnotes whenever appropriate to indicate the data for
the rulings included as a result of the decisions —been published in the
Semanario Judicial de la Federación y su Gaceta.
This volume will undoubtedly meet the demands of those
interested in staying posted on the doings of Mexico’s highest Tribunal,
and will allow the general public an understanding of the most
significant sentences that serve to clarify the national law with a view
XXV
XXVI
RELEVANT DECISIONS
to encouraging social harmony. It is particularly important to consider
that this synthesis continues to serve as evidence of the pertinence
of the 1994-1995 constitutional reform, which transformed the Supreme
Court into a Constitutional Court. Indeed, the cases reviewed account
for the ever-growing intervention of the pinnacle of the national
judiciary in the performance of the three Powers of the Union, and in
safeguarding individual rights and strengthening the core topics of the
Mexican constitutional system, such as sovereignty, division of powers,
and constitutional supremacy.
May this work be a testimony to the efforts made by the highest-ranking
judges in Mexico in favor of a state of law, attainable only through
strict observance of the Federal Constitution. Transcendent not only
in the editorial field, but basically in the social arena in virtue of its
contents, this book is another addition to the essential legal bibliography
necessary for the study of the Mexican Constitutional Jurisdiction.
Publication and Educational Promotion
Committee of the Mexican Supreme Court
Chief Guillermo I. Ortiz Mayagoitia
OCTOBER
2003
A restated tax sanction imposed by the
authorities based on the Miscellaneous
Resolutions must be grounded only with regard
to the restated portion
Resolution to Opposite Rulings 170/2002-SS. Between those
sustained by the Second Court of the Circuit number Thirteen and
the First Collegiate Administrative Court of Circuit Six. October 17,
2003. Opinion delivered by Justice Genaro David Góngora Pimentel.
Registration Number: 1
The First Administrative Court of the Circuit number Six maintained
that the fact that the authorities should have based themselves on
Section I, Article 86 of the Federal Tax Code and on the Miscellaneous
Resolutions to impose a minimum updated fine does not bring about
legal uncertainty given that the amounts of the fines set forth in the first
regulations above are updated by the tax authorities through the
Miscellaneous Resolutions for the related year. Thus, only the amounts
therein contemplated are considered by the tax authorities to determine
the fine amount, and although the authorities impose minimum updated
fines on the taxpayer, they are not compelled to provide a rationale
for imposition over and above the considerations that lead to an
infringement. In turn, the Second Court of the Circuit number Thirteen
determined that whenever the administrative authorities, by virtue of
their powers to enforce tax duties, impose a minimum fine as per the
Miscellaneous Resolutions, but not with respect to the minimum amount
contemplated under the Federal Tax Code, the act under challenge
proves conflicting for, because it is based on two legal provisions with
different hypotheses, legal uncertainty and insecurity is created in the
detriment of the taxpayer. Therefore, the tax authorities should have
invoked special circumstances, specific reasons, or immediate causes,
the seriousness of the violation, recidivism, and the financial capacity
of the victim.
1
2
RELEVANT DECISIONS
The Second Chamber of the Supreme Court indicated that, in
accordance with Article 16 of the Federal Constitution, all acts of
authority must be appropriately and sufficiently grounded and
motivated and that adequate correspondence must exist between the
alleged motives and the applicable norms. (i.e., normative hypotheses
must be materialized in the case at hand). Moreover, the authorities that
impose sanctions on individuals, in exercise of their powers, to enforce
the principle of grounding and motivation, are compelled to accurately
point out the regulation applicable precisely to the relevant act. Only by
doing so can the citizen be certain of the grounds on which the act of
authority is based. Furthermore, the authorities are required to fulfill
the motivation requirement by beauty expressing all logical/legal rationale
leading it to deem that the transgression of the individual conform to
the normative assumptions contemplated under the legal precept
deemed applicable.
The Chamber indicated that, when it comes to sanctions whereby
their amounts are established by the legal rule distinguishing between
minimum and maximum to enable the authorities to validly set the
related amounts, it is necessary to carry out an in-depth analysis of
the seriousness of the infringement, the financial capacity of the
offender, his relapse into the conduct originating the penalties, and all
circumstances conducive to particularizing the sanction in question.
Nevertheless, the High Court pointed out that this provides for an
exception given that there is no requirement for the authority act as
motivator. However, in the case of a restated minimum tax fine, the
imposing authorities shall only promote the restated portion of
the fine given that, under Article 17-B of the Federal Tax Code, they
are responsible for restating all contributions, uses, and tax rebates,
including fines.
The Second Chamber observed that, based on the premise that
the amounts set forth in the Federal Tax Code are not modified or revoked
through diverse acts of the legislator, any restatement by the tax
authorities —as an administrative act— may not in itself substitute the
amounts approved through the legislative process. Therefore, the only
minimum amount not required to be instructed is that established by
the legal rule, meaning that the authority is compelled to promote
only the restated portion; that is, the difference between the minimum
fine provided for in the applicable rule of the Federal Tax Code and
the restated tax fine referred to in the Miscellaneous Resolutions.
M EXICAN SUPREME COURT
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In other words, the restated amounts —regardless of those
approved by the legislator— are not automatically incorporated into
the Federal Tax Code for that would be tantamount to having the
authority legislate merely as a result of restating amounts or values,
which is not allowed under the principle of reservation of law. Thus,
the tax authorities, by imposing a sanction on a minimum restated
amount, is compelled to explain the procedure for the calculation of
the restated portion of the fine to ensure that the citizen knows how
such restatement is computed and empowering him also to make a
related objection if erroneous.1
1
Ruling 2a./J. 95/2003, Semanario Judicial de la Federación y su Gaceta, Novena
Época, v. XVIII, November 2003, p. 153.
3
NOVEMBER
2003
Whenever tax authorities authorize repayment
of a credit balance but incorrectly determine
its restatement and the taxpayer requests
repayment of the difference and obtains
authorization, interest payment shall be
calculated as of the maturity date of the period
mentioned in paragraph three, Article 22 of the
Federal Tax Code —but only with respect to
the initial amount outstanding
Resolution to Opposite Rulings 130/2003-SS. Among those held by
Administrative Courts Three and Thirteen, both of Circuit number
One. November 14, 2003. Opinion delivered by Justice Genaro David
Góngora Pimentel.
The issue revolved around whether, for purposes of partial repayment of
a favorable Value Added Tax balance, the taxpayer must request such
balance from the tax authorities and, if authorized, whether interest
should be accrued as of maturity date, as described in paragraph 3 of
Article 22 of the Federal Tax Code or, alternatively, as of the date on
which the taxpayer files a tax return with a favorable balance.
The Second Chamber of the Supreme Court pointed out that the
legal disposition establishes that tax authorities are compelled to repay
all unduly-paid amounts, as well as those admissible in accordance
with the tax laws, including credit balances. It further added that, in
direct amparo proceedings that generate a contradiction of criteria,
the taxes requested were determined by the taxpayer himself, and the
tax authorities authorized repayment. However, this did not cover the total
restated amount of the credit balance, but only a part, leading the
taxpayer to request the restated balance and obtain authorization from
the authorities.
Based on the fact that all restated amounts retain their legal nature
as before restatement, the chamber deemed it sensible to consider
5
6
RELEVANT DECISIONS
that the determination authorizing repayment of the credit balance
—with restatement incorrectly calculated— and thereby providing for
a legally deficient amount, should be construed as an act of
nonfulfillment by the authorities for failing to repay the related balance
in full. If repayment of the credit balance is authorized by the tax
authorities but its related restatement is incorrectly determined, and
the taxpayer requests repayment of the difference and authorization is
duly obtained, payment of interest shall then be calculated as of the
maturity date of the period referred to in paragraph three, Article 22
of the Federal Tax Code, but only with respect to the amount initially
outstanding.
According to the chamber, the above may be attributed to the
fact that, whenever the taxpayer is compelled to request the balance
and such repayment is authorized by the authority, an obligation is
generated for the Federal Tax Authorities in having to pay interest on
the amount in question as from maturity, as established above and to
compensate the taxpayer for late payment.
In light of the above, thesis 2a./J. 118/2003 was published in the
form of jurisprudence on page 99, Volume XVIII of the Semanario
Judicial de la Federación y su Gaceta dated December of 2003.
MARCH
2004
Criteria to determine whether or not the
execution of an amparo decision is excusable
Noncompliance incident 62/2000, derived from indirect amparo trial
94/98. March 23, 2004. Opinion delivered by Justice Juan Díaz
Romero.
The Court studied the incident in question in order to determine
whether or not contempt existed by the authority in charge, as well
as, as appropriate, to establish whether the violation was excusable
or not, and, hence, whether the sanction set forth in constitutional
Article 107, section XVI applied. The Supreme Court started off by
analyzing the process to be followed in order to apply such sanction
of dismissal and consignment with the District Judge of the defaulting
authorities or, otherwise, in to decide if simple compliance resolutions
applied.
Thus, it first pointed out that in the application of the sanction of
dismissal and consignment with the District Judge, as provided for in
Article 107, section XVI, of the Constitution, two systems have existed:
the original established in the Constitution of 1917 (which in essence,
governed until May 17, 2001), and the current one, which derives
from the reform carried out in the year 1994 to constitutional Article
107, section XVI, and whose effective term was put off until May 18,
2001, date on which the reforms to the Amparo Law came into force.
Based on the original system, the power to decide on the
application of such measures was limited given that, in order proceed
in consequence, proof of the objective existence of any of the facts or
7
8
RELEVANT DECISIONS
background sufficed for the neglecting Authority to be immediately
discharged and consigned with the appropriate District Judge, and for
a sanction of nonobservance to be applied. Therefore, the Court was
not given further elements to assess the application of the sanctions of
constitutional Article 107, section XVI, other than the objective,
material, and real proof of nonobservance. Having demonstrated
the existence of some of these, all punishment above were inevitably
to be applied, without the possibility that the Supreme Court might
potentially carry out a more in-depth analysis with respect to the
noncompliance of the amparo decision and the circumstances surrounding
contempt.
Nevertheless, the reform to Article 107, section XVI, enacted
through a decree dated December 30 1994, published in the Federal
Official Gazette on December 31, grants the Supreme Court the powers
it lacked under the original noncompliance system for amparo
decisions,2 allowing it to assess whether noncompliance with a decision
imposed on an authority is excusable or not. The situation must be
weighed up before applying the measures referred to in the
constitutional article cited above.
By virtue of the above considerations, the Supreme Court
established that the application of the aforementioned measures is no
longer immediate or automatic after nonperformance is proven, but
that, in accordance with the Constitution, the Supreme Court is required
to adhere to the following test:3
1.
2.
3.
4.
5.
Verify whether the authority from which performance is required
insists on the repetition of the act under challenge or tries to avoid
the amparo decision.
Analyze and weigh whether it is excusable or not.
If nonperformance is inexcusable, the authority will be immediately
fired and consigned with the appropriate District Judge.
If nonperformance is excusable following prior statement of
nonperformance or repetition of the acts in question —the authority
in charge will be required to comply. (a reasonable term must be
provided for such purposes)
Should the authority fail to execute the sentence at maturity of
the term granted, he or she will be discharged and prosecuted.
2
Los tribunales constitucionales y la Suprema Corte de Justicia de la Nación, 2nd.
ed., México, Suprema Corte de Justicia de la Nación, 2006, pp. 116-117.
3
Ruling P. XV/2004, Semanario Judicial de la Federación y su Gaceta, Novena
Época, v. XIX, May 2004, p. 45.
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9
In addition, as for the scope of the terms "excusable" and
"inexcusable", as regards nonperformance of an amparo decision, the
Supreme Court determined that, provided the Constitution does not
define the same and that the imposition of the sanctions contemplated
under constitutional Article 107, section XVI is at the sole and exclusive
discretion of the bench of the Supreme Court, this body is empowered
to decide, on a case by case basis, whether nonperformance is excusable
or inexcusable. 4
In summary, it was determined that weighing up the excusable or
inexcusable nature of the failure to perform an executory writ of
guarantee is a condition to resolving the application of constitutional
Article 107, section XVI, and the authority responsible for execution is
actually judged based on the analysis and assessment of the particular
case made by the Supreme Court. However, it was estimated that
nonperformance of an amparo decision may be deemed excusable
when there is good reason to exempt the lack of compliance and that,
on the contrary, nonperformance is inexcusable where there is no good
reason justifying default of the duties imposed by the executory writ of
guarantee or to excuse such omission.
With respect to the application of all the sanctions provided for
under Article 107, section XVI, of the Constitution the Supreme Court
pointed out that the prevalence of actual truth over formal truth must
invariably be sought. Therefore, the analysis performed should not be
limited to the reasoning of the judiciary bodies involved in the
resolutions issued in the executory proceedings. More importantly, it
should be borne in mind that in all cases of not-compliance, the
application of the sanctions of the above-mentioned section XVI is for
purposes of removing the official whose neglegent attitude
has rendered it an obstacle for the performance of an amparo decision
and to ensure that whoever replaces such official abides by the
appropriate judicial order, under penalty of sanction in the same
terms as his predecessor.
4
Ruling P. XVII/2004, ib. p. 143.
AUGUST
2004
Considerations on the principles of tax
propor tionality and legality, as well as
per for mance of the Federal Tax and
Administrative Court
Resolution to Opposite Rulings 84/2001-SS. Between the Firts
Chamber of the Administrative Court of Circuit and others, and
the Firts Chamber of the Administrative and Labor Court of the
Seventh Circuit and others. August 6, 2004. Justice Guillermo I.
Ortiz Mayagoitia delivered the opinion.
The Second Chamber of the Supreme Court resolved on five issues
under controversy and came to various conclutions. The firts issue
involves determining whether the principle of tax legality is observed
by defining a criminal conduct in a Foreign Trade Miscellaneous
Resolution. It was also necessary to determine whether the general
rules issued and published by the appropriate tax authorities could
regulate the liabilities of taxpayers. Thirdly, it was necessary to establish
whether the Federal Tax and Administrative Court is legally authorized to
analyze the validity of provisions of general observance issued by an
administrative authority based on a legal authorization. Fourth, whether,
in a contentious administrative trial before the Federal Tax and
Administrative Court, where a fine is imposed as a result of defaulting
conduct regulated under both the Customs Law and a general
administrative rule, the above Court should merely study the vices of
the appropriate sanctioning act or whether it may analyze whether
said rule abides by the law. The fifth and last point of controversy
involved inferring whether the regulation provided for in the Foreign
Trade Miscellaneous Resolution —as amended— for 1998, in relation
to the default established in Article 184, section III of the Customs Law,
observes such law or whether, on the contrary, the above administrative
rules lack sufficient legal basis. This extends to the validity of the fines
imposed due to the infringement in question.
11
12
RELEVANT DECISIONS
Firstly, the Chamber stated that the principle of tax legality
proportionality, and equity in allocation of public monies apply to the
taxes to be paid by citizens to cover public expenses. Therefore, all
provisions of legal observance governing their determination shall be
subject to such principles. In the case of the regulation governing the
accessory tax obligation related to filling out the data in an import
order, as well as the violation incurred, in terms of Article 184, section
III of the Customs Law, when omitting or falsifying any such data, or
whenever the statistical information is altered and does not match the
elements of the tax payment or does not refer to default, it is evident
that such rule does not act on behalf of the Mexican tax authority and,
thus, does not formally abide by the principle of tax legality.5
On the other hand, the Chamber observed that the general rules
issued and published by the appropriate tax authorities are applicable
to the Director of the Internal Revenue Service based on Articles 14,
section III, of the Internal Revenue Service Law, and 33, section I,
subparagraph g), of the Federal Tax Code, which in turn, are based on
Article 73, section XXX, and Article 90 of the Federal Constitution.
Thus, there is no hindrance whatsoever for the issuing of rules governing
citizen liabilities; provided, however, that they do not affect a matter
subject to reservation of law, or exceed the legal and regulatory context
governing their issuance. They are also not governed by Articles 33,
second last paragraph, and 35 of the Federal Tax Code —which refer
to all internal criteria to be observed in the application of the rules
affecting the tax arena, whether it be a law, a regulation or a general
administrative rule. By nature, such rules may not generate liabilities
for citizens, without illustrating the scope of any provisions of general
observance. If published in the Federal Official Gazette, such rules
should grant rights to taxpayers, unlike the above general rules, which
bind citizens although they may, by virtue of a sentence issued in a
case arguing a legal defense, become fully or partially ineffective, due
to nonobservance of the principles governing issuance.6
Thirdly place, the Court resolved that the Federal Tax and
Administrative Court has express authority only to hear trials started
against the final resolutions mentioned in Article 11 of its organic law,
it is also true that, in accordance with Article 202, section IX, of the
5
6
Ruling 2a./J. 106/2004, ib., v. XX, September 2004, p. 227.
Ruling 2a./J. 107/2004, ib., p. 109.
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13
Federal Tax Code, a contentious administrative trial is not ripe against
ordinances setting forth rules or general and abstract instructions,
without having been particularly applied to a claimant. The implication
is that the legality of this type of act may be matter for analysis in issuing
a decision in a trial of such nature, only if the claimant was injured by
its actual application, in the final decision under challenge or in prior
proceedings. This finding, protects the right to prompt and expeditious
justice. It is also based on Article 73, section XXIX-H, of the Constitution,
in accordance wherewith, the object of the establishment of the Court
was to settle all disputes between private parties and the federal public
administration provided that all vices ascribable to said rules are of a
legal nature. In this light, the fact that a general administrative rule
may not be challenged in an administrative trial implies that, in the
claim made against the resolution being applied, the challenge of
the resolution itself is not feasible just as it is not feasible to consider the
issuing authority as respondent. Therefore, the claimant shall merely
put forward the challenge based on the grounds aimed at proving that
the corresponding general rule was not issued in observance whit the
legislative or regulatory act governing its issuance, and the Court shall
merely study such concepts when making its decision. Thus, if
sufficiently grounded, the Court shall clearly specify which terms affect
the validity of the challenged resolution, and the illegality of the
corresponding general rule shall not be noted in its decisions. 7
In addition, the Court recalled that direct constitutional control of a
general administrative rule is a power reserved to the Federal Courts.
Therefore, the Federal Tax and Administrative Court does not have
the authority to provide an opinion with respect to the claim that a
provision of this nature infringes the legal safety or hearing guarantees
or the principle of tax legality. 8
Furthermore, the Second Chamber pointed out that, by virtue of
the principle of external consistency of decisions, derived from the
principle of "Full Justice", reflected in Article 237 of the Federal Tax
Code, the Federal Tax and Administrative Court may only address the
legality of an administrative general rule supporting the challenged
final decision when the claimant has presented the appropriate analysis
corresponding to the claim.9
7
8
9
Ruling 2a./J. 108/2004, ib., p. 220.
Ruling 2a./J. 109/2004, ib., p. 219.
Ruling 2a./J. 110/2004, ib., p. 221.
14
RELEVANT DECISIONS
Finally, the Chamber expressed that submitting a petition for
importation where data is omitted or falsified is an administrative
violation provided that when statistical information is altered there is
no especific legislation in this regard. Likewise, Article 197 of the
Customs Law Regulations sets forth that the statistical information
described in Article 184, section III of the Customs Law varies when,
in the petition, data defined by the Ministry is altered. In turn, the
above administrative general rules specify all data causing such
alteration. In view of the above, it should be considered, on the one
hand, and in accordance with Article 14, section III of the Internal
Revenue Service Law, that it is the right and duty of the tax authorities
to issue miscellaneous provisions allowing application of the tax/customs
legislation, and on the other hand, in accordance with Article 36,
paragraph one of the Customs Law, the Ministry of Finance and Public
Credit is empowered to approve the official form used to request
permission to import. Hence it is evident that it was the will of the
legislature to enable an administrative authority to determine which
data was to be contained in the petition for importation. This leads to
the empowerment of this authority to provide detailed terms under
which citizens shall fulfill the obligation of submitting such petition.
Therefore, the fact that that such administrative authority points out
which data —on its omission or falsification— leads to an alteration
of the statistical information should not be construed as exceeding
the legal and regulatory context governing its work, since the above
administrative authority is indeed authorized, both legal and rule-wise,
to issue the appropriate administrative general rules. This provides
certainty to citizens in view of the corresponding lack of legal definition,
thereby avoiding discretional enforcement of the sanctioning powers
of the State based on criteria that may prove contradictory.10
10
Ruling 2a./J. 111/2004, ib., p. 226.
The First Chamber of the Supreme Court
exercises its powers to attract direct amparo
466/2003
Petition for power to attract 7/2003-PS. Chamber one of the Civil
Collegiate Court of the first Circuit. August 18, 2004. Opinion
delivered by Justice Olga Sánchez Cordero de García Villegas.
On February 6, 2003, as a result of federal civil proceedings and the
context of a civil liability suit as set forth in Article 1910 of the Federal
Civil Code (CCF),* the payment of over two million pesos was imposed
on the Unitary Court Magistrates and two other Magistrates from the
Collegiate Court of the Twenty ninth Circuit (in Pachuca de Soto,
Hidalgo) for damages caused by their performance, consequential
damages, an extra payment for moral prejudice as provided for in
Article 1916 of CCF, and the payment of legal fees. Furthermore, the
claimants started a Contingent Civil Liability Action against the Federal
government via the Attorney General’s Office.
The corresponding suit was disavowed by the judge who heard
the appeal, since, while it is true that co-respondents, in their capacity
as Magistrates of the Second Collegiate Court and Unitary Court of
Twenty Second Circuit, belonged to the Federal government, it is also
true that they were not part of the Executive Power, but the Judiciary.
Therefore, it was admissible for the claimant to seek payment of the
benefits mentioned in a contingent manner through the Attorney
General’s Office, on behalf of the Federation. Moreover —according
* All abbreviations and initials correspond to the Spanish version.
15
16
RELEVANT DECISIONS
to the District Judge, the action was obscure and irregular in terms of
the claim submitted in a contingent manner against the Federal
government. As established in Article 1927 of the CCF, the State is
liable for the payment of damages caused by its public officials in the
performance of their duties. However, such a claim may only become
effective against the State when the public official directly responsible has
no assets, or his assets are insufficient to pay for damages. The claimant
failed to specify whether a claim had already been filed against the
Magistrates for the payment of damages, whether such Magistrates
possessed any assets, and whether their assets where insufficient to
vouch for the claimed damages, thus allowing the contingent claim
against the State. Therefore, by virtue of the obscurity of the claim, it
was not admitted.
The claimant disagreed with said determination and lodged an
appeal, heard by the Second Unitary Civil/Administrative Court of the
First Circuit, which confirmed the sentence. Thus, the claimants requested
an amparo from the Federal Courts against the Unitary Court, appealing
the resolution that put an end to the trial. The claimant pointed out its
rights had been infringed upon as described in Articles 14 and 16 of
the Federal Constitution. The First Collegiate Civil Court of the First
Circuit decided the amparo. It choose to request the Supreme Court to
exercise its power to take on and hear the case.
The First Chamber of the Supreme Court deemed it admissible to
exercise its power to attract direct amparo 466/2003, from the index
of the First Collegiate Civil Court of the First Circuit, given that the
case was marked by its own special characteristics and showed traces
of transcendence.
Firstly, the litis on which the acts in the amparo action were based;
that is to say, the sentence that resolved the appeal relating to the full
civil trial at District Civil Chamber Three of the Federal District, whereby
the decision that dismissed as unfounded the full trial action on civil
liability instituted by the claimants, was confirmed. Also, the powers
of the judge to study the admissibility by operation of law was analyzed,
as well as all elements which constitute the civil liability and moral
prejudice action derived from the performance of two Magistrates of
the Second Collegiate Court of the Twenty ninth Circuit and the Unitary
Court Magistrate of the above Circuit, and jointly against the Federation,
in light of the manner in which direct amparo 476/2001 was resolved,
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and where defendants acted as Magistrates of the former Fourth Collegiate
Court of the Twenty Second Circuit; (Currently, Second Collegiate Court
of the Twenty ninth Circuit).
Secondly, the First Chamber decided that the pronouncement
made on the admissibility of the ordinary civil liability and moral
prejudice action against the Magistrates of the Federal Judiciary, due
to acts carried out in the performance of their duties, necessarily
implies an analysis and assessment of their performance as officials
of a terminal jurisdictional body against whose resolutions, by general
rule, no appeal whatsoever is available. In other words, analysis of
the legality of the award issued in a different direct amparo should
be performed, in order to determine its appropriateness.
Furthermore, any pronouncement made in the related sentence
with regard to the contingent liability claim sought from the government
may involve resources of the nation, should the claim proceed.
Finally, this matter has no similarity with the common order or
rule of matters heard by the Supreme Court. Moreover, in order to
provide citizens with legal certainty, it is necessary to set the criteria
to be applied by Collegiate Courts to resolve on these matters, whose
frequency before collegiate bodies had increased.
17
Study of infringement items determining
granting of direct amparo shall abide by the
principle of the higher benefit. The benefit of
those who, although grounded, are not better
than those achieved by claimant may be
omitted —including those referring to the
constitutionality of laws
Resolution to Opposite Rulings 37/2003-PL. Between those maintained
by the First and Second Chambers of the Mexican Supreme Court.
August 31, 2004. Opinion delivered by Justice José Ramón Cossío
Díaz.
In this case, the factual requirements necessary for the existence of
apposing rulings between the First and Second Chambers of the
Supreme Court was analyzed.
The point of contradiction —which would be settled by the bench
of the Supreme Court— was related to whether or not it is a general rule
that in a direct amparo decision where unconstitutionality of legal rules
is enforced, those concepts of violation regarding the unconstitutional
application of a rule (resulting in the questioned act) should be studied
with respect to the matters of legality exposed, or otherwise, whether
said matter is restricted to the criminal law.
The Supreme Court, pointed out that, in accordance with the
technique to resolve direct amparo trials heard by the Circuit Courts
—regardless of the matter in question— the study of the grounds for
violation establishing its admission must abide by the principle of
greater benefit, and may omit those issues which, although grounded,
do not represent an improvement from that already achieved by
claimant —even those referring to the constitutionality of laws. Thus,
determination of preeminence of the study of grounds for violation
is the discretion of the courts, in consideration of the consequences
of this decision for the claimant. This, the Court clarified, intends to
19
20
RELEVANT DECISIONS
privilege the provisions of Article 17, paragraph two of the Federal
Constitution, related to securing real, full and effective access to
administration of justice for citizens. That is, regarding the various
matters heard by the amparo courts, ideally, those matters generating
a greater legal benefit for the party aggrieved by an act of authority
should subsequently be ruled unconstitutional. 11
In addition, the Court ruled that the right to effective access to
justice shall be respected not only formally, but in the sense that the
State is compelled to create enough courts to resolve disputes occurring
between individuals, or between individuals and State authorities, to
avoid that individuals administer justice among themselves.
Thus, in order to achieve effective access to the courts, the possibility
of resorting to the courts is not enough, but, from a material perspective,
it is required that such courts promptly, fully, and impartially decide
matters under their jurisdiction.
So, the Court clarified that the term "fully", set forth in Article 17,
paragraph two of the Constitution, means that the Court shall use a
legal analysis to address the main topics referred to in the dispute in
question. Therefore, the greatest legal benefit for claimants will be
achieved.
Under these criteria the Court intended to expedite the administration
of justice and avoid idle analysis that do not benefits claimants. This
represents progress in the protection of fundamental rights by ensuring
that amparo courts do not study all potential violations committed in the
detriment of citizens, under the pretext of completing all procedural
formalities, without this implying the abstraction of such aspects, but
privileging the study of potential violations to the question of law that are
truly in detriment of claimants.
11
Ruling P./J. 3/2005, ib., v. XXI, February 2005, p. 5.
OCTOBER
2004
An incident related to notice nullity during
labor proceedings shall be started within a
generic 3-working day term, as established
under Article 735 of the Federal Labor Law,
starting the moment the aggrieved party learns
or becomes aware of the proceeding affecting
that party, including maturity date
Resolution to Opposite Rulings 107/2004-SS. Between the Second
Collegiate Labor Court of the Fourth Circuit and Sixth Collegiate
Labor Court of the First Circuit . October 1, 2004. Opinion delivered
by Justice Sergio Salvador Aguirre Anguiano.
The existence of contradictory rulings was confirmed because, in cases
containing the same elements, Collegiate Labor Court of the Second
Circuit and Fourth and Sixth Labor Courts of the First Circuit, reached
opposing conclusions. Consequently, the Second of the Supreme
Cour t inferred that the question of contradiction consisted of
determining the admissibility of the generic "three-working day" term
provided for in Article 735 of the Federal Labor Law whenever
the party aggrieved by a notification claims its nullity through the
corresponding incident, and of determining the rules to be observed
in relation with the calculation of the above term.
In order to resolve the matter, it was necessary to bear in mind the
text of aforementioned Article 735, and the various legal principles
governing service of notifications and processing of the incident of
nullity in a labor trial. Thus, from Articles 739 through 752, and 761
through 763 —all pertaining to the Mexican Labor Law— it appears
that those served by a notification in contravention to the norms
contained in Title Fourteen, Chapter VII, of said Law, may request
its nullity.
Specifically, Articles 739 through 751 set forth the requirements
and formalities to be met in order to serve notifications, while item
21
22
RELEVANT DECISIONS
752 establishes that these notifications shall be void if not applied in
accordance with the above principles. Article 762 points out that
nullity will be deemed a question of previous and special pronouncement,
and shall be resolved in the way and terms prescribed by Articles
761, and 763.
It also appears from said articles that both the chapter related to
the notifications and to the incidents, do not specify the terms within
which it is possible to appeal a bad notification. So, in view of said
omission, the general rule set forth in Article 735 of the Labor Law
applies. Said legal provision sets forth a generic term of "three working
days" for those cases where a procedural act shall be carried out or
any rights exercised. The set of regulations governing the situation
does establish a specific term.
Above Article 735 of the Federal Labor Law does not prescribe
the moment as of which the controlling generic term starts/ends. This
calls for a consideration of the various articles —733, 734, 736, 737,
and 738— contained in Title Fourteen, Chapter VI of the law, related to
procedural terms.
In order to verify the time of the nullity in the incident in question,
that is, the moment from which the "three-working day" generic term
starts/end as described in Article 735 of the Federal Labor Law, the
provisions in Article 764 must be observed. This article holds that
the element required to consider that a bad notification will become
effective, is related to the moment in which the aggrieved party learns
about the procedural proceedings. (i.e., the moment where he or she
manifests knowledge of the proceedings). According to Article 733, in
labor law cases "all terms will start running on the day following the day
the notification becomes effective —including maturity date".
The Second Chamber observed that these elements are important
to determine the start and end of the generic term of "three working-day"
provided for in Article 735 of the Labor Law. Thus, the Court ruled
that the notice nullity in a labor trial shall be decided with the
"three-working day" generic term referred to in the above Article
735. This term will start when the claimant learns about or shows
knowledge of the proceedings whose notification nullity he claims
—this term will include the maturity day.
In accordance with that indicated above, the Court deemed its
criteria should control, as established in the decision resulting in the
following ruling.
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THE NULLITY OF NOTICES IN LABOR PROCEEDINGS. THE
INCIDENT ABOVE SHALL BE STARTED WITHIN THE THREEW O R K I N G D AY T E R M P R E S C R I B E D I N A R T I C L E 7 3 5 O F
THE MEXICAN LABOR LAW, UPON CLAIMANT LEARNING OR
SHOWING KNOWLEDGE OF THE TRIAL AFFECTING CLAIMANT
—INCLUDING MATURITY DAY. The precept above sets forth a
three-working day generic term for the execution of legal acts or the
exercise of any rights, where no term is set forth. However, it does
not provide for the moment as of which such term starts/ends.
Therefore, the contents of Title Fourteen (Procedural Labor Law),
Chapter VI (Procedural terms) of the Mexican Labor Law shall be
considered —specifically, Article 733. This rule prescribes that in a
labor trial, terms will start running on the day following notification
becoming effective —including maturity day— and item 764, which
infers that the element that shall be observed to consider that a bad
notification becomes effective is that related to the moment in which
the aggrieved party learns about proceedings. (i.e., the moment in
which claimant shows knowledge of proceedings) Thus, it is
concluded that the notice nullity incident at labor trial shall be started
within the three working-day generic term, as of the claimant learning
about or showing knowledge of a trial whose nullity is started by
the claimant —including maturity day. 12
12
Ruling 2a./J. 156/2004, ib., v. XX, November 2004, p. 69.
23
Should alteration of a credit instrument be
accredited in its amount, but debtor acknowledges
an amount other than that undertaken, the debtor
may be convicted for this charge in the same
proceedings
Resolution to Opposite Rulings 84/2003-PS. Between the Fourth
Collegiate Court of the sixth Circuit (currently Labor Collegiate Court
of the sixth Circuit) and the First Collegiate Court of the Eighteenth
Circuit. October 6, 2004. Opinion delivered by Justice Juan N. Silva
Meza.
The Fourth Collegiate Court of the Sixth Circuit (currently Labor
Collegiate Court of the Sixth Circuit) decided that the fact that
alteration of text in a credit instrument —as regards the amount— is
proven does not deny its nature as an executory instrument. So, if
existence of the obligation for a given amount is admitted, debtor
shall be liable. In turn, the First Collegiate Court of the Eighteenht
Circuit deemed that it is incor rect to order payment of an
amount that has not been claimed. This infringes the principle of
consistency that should be evident in a legal provision, regardless
of whether the defendant acknowledges existence of indebtedness
for a given amount.
The First Chamber of the Supreme Court noted that, on resolving
similar matters, the collegiate bodies mentioned above examined the same
legal matter. (i.e., whether upon evidencing the alteration to a credit
instrument, as regards the amount, the debtor may be compelled, in
the same trial, to payment of the actually evidenced amount, if such a
payment is acknowledged by the debtor). Due to the fact that the courts
reached different findings, it was the obligation of the First Chamber to
provide the necessary legal security in the case by settling the
contradiction.
25
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RELEVANT DECISIONS
The Court warned that the credit instrument has, among others,
the attribute of incorporation. This implies merger of, or linkage to, the
document in itself, along with the literal law inherent to it. This
attribute bears two aspects: The active aspect, which consists of the
indispensable bond between the document and the law therein
prescribed and, the passive aspect, consisting of the indispensable
bond between the document and the obligation of the subscriber
incorporating the document. Therefore, if a title of credit is altered
as to the amount, it is clear that the element of incorporation
undergoes mutation, which necessarily affects both the right and the
obligation generated by such an instrument.
The First Chamber indicated that in such a situation, the debtor’s
will to exchange is not dully represented, for it proves different than
that actually expressed upon subscription of the credit instrument. So, it
is clear that if alteration of the document is evidenced, the subscriber
shall not be ordered to pay because the document does not represent
the debtor’s statement of intention. In accordance with Article 13 of the
Negotiable Instruments and Credit Operations Law, if the debtor
acknowledges a different amount as the true amount of the document,
then he or she is clearly accepting the statement of intention, agreeing
to be subject to payment of such amount. Therefore, that is the amount
for which any decision in a related commercial trial should be made.
Based on the above, the Court ruled that if an alteration of a
credit instrument is proven, as to the amount, the debtor may be
ordered to pay such amount, if such amount is acknowledged by the
debtor. For such purposes, it is unnecessary to have a separate trial
as that would be contrary to the principle of procedural efficiency,
given that the litis was obtained, and that related evidence was offered
and accepted by the parties, meaning that their procedural rights were
respected.13
13
Ruling 1a./J. 101/2004, ib., v. XXI, April 2005, p. 713.
Assignment does not become effective with
respect to assets acquired after attachment, but
before obstacles are registered in the Public
Registry of Property
Resolution to Opposite Rulings 22/2002-PS. Between those
maintained by the First Collegiate Civil Court of the Third Circuit
and the Second Collegiate Court of the Sixth Circuit (currently the
Second Collegiate Civil Court of the Sixth Circuit), and by the Third
Collegiate Court of the Sixth Circuit. October 6, 2004. Opinion
delivered by Justice Juan N. Silva Meza.
The First Collegiate Civil Court of the Third Circuit deemed that the
fact that the attachment initiated on property should be registered in
the Public Registry of Proper ty does not imply that claimant
acquired the title to said property when the claimant has acquired
the real property prior to registering the attachment. In this case, the
property had already left the debtor’s estate by the time registration
occurred. On the other hand, the Second Collegiate Court of the Sixth
Circuit (currently Second Collegiate Civil Court of the Sixth Circuit) found
that, while the appellant was right as to the fact that when claimants´
deed was recorded, the attachment had already been registered, this
was not sufficient reason to revoke the decision, since no evidence
existed that claimants knew about the attachment. Furthermore, while
the attachment was effected prior to the date on which the deed was
granted, this fact does not render amparo petitioners as owners of the
property. For such consideration, it is indispensable that whoever
acquires the property does so in knowledge of the situation surrounding
the property —in the case of real estate, knowledge is assumed by
disclosure through registration with the Public Registry of Property.
Therefore, if the attachment was registered after the purchase-sale, it
goes without saying that the acquirer had no knowledge of the
27
28
RELEVANT DECISIONS
attachment on the acquired property, and the failure to be duly
inscribed could in no way render the amparo inapplicable.
As for the Third Collegiate Court of the Sixteenth Circuit, it
considered that, in the same situation, the right of the buyer may indeed
be established, for registration in the Public Registry of Property has
declaratory and not constitutive effects. Thus, attachment exists and is
effective as of the date on which it was carried out. Moreover, as the
property was acquired after the start of the trial in question, a procedural
substitution was effected.
The First Chamber of the Supreme Court found that there was
contradictory and rulings related to determining whether a third party
not involved in the trial who purchases property indeed acquires the
property from the seller, when the related agreement is executed after
such property had been attached, but before the attachment is
registered with the Public Registry of Property.
Firstly, the Chamber recalled that the buyer succeeds or subrogates
—through any title— the right of other(s); that is to say, buyers of
property by means of a legal act acquire (derived from said legal act)
the rights and duties of the sellers. In addition, the Court deemed that
it is indispensable to consider that, in accordance with relevant legal
doctrine, attachment is the transfer ordered by a competent authority
of an asset or set of assets of private ownership in order to secure
the fortuitous execution of a claim resulting from a trial. From the
above, the Court inferred that attachment is not an actual right by
nature over the attached assets, but merely affects certain assets of the
debtor in order to ensure the completion of their obligation. According
to the collegiate body, this necessarily shows that the attached assets
must be a part of the estate of the attached party.
The First Chamber clarified that the attachment must necessarily be
registered with the Public Registry of Property so as to bear legal effects
on third parties. As long as the attachment goes unregistered, the
garnisher cannot oppose its rights, with respect to the attached asset,
against a third party that has effectively previously registered such rights.
Thus, if a person acquires previously-attached property, but the
attachment has not been recorded, acquisition is considered free
of liens. Moreover, the Court indicated that the disclosure effects of
registration do not entail per se general knowledge of the attachment
act with respect to a given asset.
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29
The Supreme Court found that, if a third party unrelated to the trial
purchased property and executed the corresponding agreement after
the sold asset had been attached, but before attachment was registered
with the Public Registry of Property, such third party may be considered as
the legitimate owner.14
14
Ruling 1a./J. 99/2004, ib., January 2005, p. 77.
Article 234 of the New Criminal Code for the
Federal District does not breach the criminal
law guarantee of accurate enforcement
Direct Amparo under review 916/2004. October 13, 2004. Opinion
delivered by Justice José de Jesús Gudiño Pelayo.
Upon resolution of direct amparo under review 916/2004, the First
Chamber of the Supreme Court decided on the constitutionality of
Article 234 of the new Criminal Code for the Federal District (Nuevo
Código Penal para el Distrito Federal [NCPDF]).
The Chamber specified that Article 14, Paragraph Three of the
Federal Constitution, sets forth the right to accurate enforcement of
criminal law by prohibiting that an act not expressly proscribed by the
law be considered illegal, the principle of nullum crimen sine lege, and
added that, according to this principle, the law must specify the elements,
essence, scope and the limits of a criminal act.
The Court noted that the bench of the Supreme Court, in ruling
P. IX/95, set forth that the legal description of crimes must meet
minimum clarity standards which allow citizens to understand those
acts illegal under the law. It further noted that Article 234 of the NCPDF
set forth the offense known —by the doctrine— as "fraudulent
administration". This refers to a situation when someone in charge of
the administration or care of a property belonging to third-parties, in
order to make personal profit, inflicts damage on the holder of the
goods, or alters the accounts or terms of an agreement, making up
operations or non-existing expenses or by exaggerating the same; hiding
or withholding or making undue use of securities; or deliberately
31
32
RELEVANT DECISIONS
carrying out operations to the detriment of the holder’s estate, for his
own benefit or that of a third party.
The Chamber noted that the description of the criminal act is clearly
set-out in the law, in the sense that there exists an active/passive offender,
a detailed listing of all prohibited behaviors, a subjective element,
and a negative result. The Court emphasized that if the expression
"to whom for any reason" does not destroy clear understanding of
the above or distort or complicate the same, then said regulating
article may not be deemed unconstitutional.
Moreover, the First Chamber found that the above expression is
limited to qualifying the phrase: "having the administration or custody
of third-party property", thus making reference to the cause whereby a
subject exercises such administration or custody on third-party property,
and not the motives of whomever engages in the illegal behavior
described above.
Thus the Court decided that the generic definition providing that
someone who for any reason —motive— administers or looks after
third-party property will be charged with the offense of fraudulent
administration, is sufficiently ample so as to comprise all possible
circunstances (the law, the authority, the will of the parties), whereby
a subject may administer or look after third-party property, with no
exception. In other words, the proscribed behavior may be incurred
equally by those who exercise the administration of the property due
to parental rights or duties or guardianship, or for other reasons or
circunstances.
In synthesis, the Court found that the words "to whom for any
reason", shall be jointly read with the phrase: "having the administration
or care of third-party property". Said formula is used in the law to
characterize the offender as a proper or exclusive subject (i.e., someone
who is legally qualified as responsible for the administration or care),
setting apart from said designation, anyone who fails to meet that
capacity.
Therefore the Chamber found that Article 234 of NCPDF does
not infringe the right to accurate enforcement of the law, for the said
article contains all elements suitable to explain the offense clearly. This
provides legal certainty to citizens in that they know the precise behavior
prohibited by the law.15
15
Ruling 1a. CXXX/2005, ib., v. XXII, November 2005, p. 32.
Upon the request of Attorney General, the First
Chamber of the Supreme Court attracted the
case surrounding the events of June 10, 1971
Petition for power to attract 8/2004-PS. Attorney General of the
Republic. October 13, 2004. Opinion delivered by Justice José de
Jesús Gudiño Pelayo.
The Federal Attorney General submitted a petition for the First Chamber
of the Supreme Court to exercise its power to attract and hear appeal
415/2004, filed by the Special Prosecutor´s Office for Attention to
Facts Probably Constituting Federal Offenses, Committed Directly or
Indirectly by Public Officers against individuals linked to Social and
Political Movements of the Past, and the similar ruling ascribed to the
Second Chamber of Federal Criminal Procedures in the Federal District.
The appeal was against the dismissal and nonsuit issued by the
District Judge hearing criminal procedure 114/2004-I, whereby, the criminal
suit brought by the Special Prosecutor was declared as prescribed
against Luis Echeverría Álvarez, Mario Augusto José Moya y Palencia,
Luis de la Barreda Moreno, Miguel Nazar Haro, José Antonio González
Aleu, Manuel Díaz Escobar Figueroa (aka) "El Maestro", Rafael Delgado
Reyes (aka) "El Rafles", Sergio San Martín Arrieta (aka) "El Watusi",
Alejandro Eleazar Barrón Rivera (aka) "El Pichín", Sergio Mario
Romero Ramírez (aka) "El Fish" y Víctor Manuel Flores Reyes (aka)
"El Coreano", as to their presumed responsibility in the commission
of genocide, as defined in, Article 149 BIS, paragraph two and five of
the Federal Criminal Code, in association with articles 7, articles 8,
paragraph I, article 9, paragraph I, article 13, paragraph I of the
Criminal Code for the Federal District and Federal Territories on general
33
34
RELEVANT DECISIONS
jurisdiction matters, and the Code for Federal Jurisdiction Matters
current for the year nineteen seventy-one.
In order to determine whether in this case, the exercise of the
power to attract is admissible, as provided for in section III, Article
105 of the Federal Constitution, the First Chamber based its decision,
among others, on the specific features of the right to execution,
determining them to be as follows: a) The Supreme Court may take
the case over, by operation of law, requesting from the unitary Court
of the appropriate circuit, remittance of orders; it may also do so
upon the request of the unitary circuit Court or the Federal Attorney
General. The latter shall express the grounds on which they deem
relative hypothesis are based; b) Attraction is valid only against
decisions issued by federal judges, and not against any type of
resolution; c) Appeal shall be duly established; d) The interest of the
federal government ("Federation"), as a "party" to the case, shall be
of a superlative degree, since, on the one hand, federal appeal courts
are empowered to resolve on general matters and, on the other, to
accept that all matters may be heard by the Supreme Court, existence
of the former would be implicitly voided; e) The "interest" and
"transcendence" of the particularities of the case shall be assessed by
the Supreme Court upon evaluating the matter, justifying the reasons
why it deems admissible to take the appeal over; f) In conclusion,
the exercise of power to attract is a fully discretional right —but
somehow an arbitrary one— of the Supreme Court, and, g) All formal
requirements are set forth by section III, of Constitutional Article 105,
and the violation of any of these renders the Supreme Court
constitutionally incompetent to exercise attraction of the matter.
In addition, with the purpose of determining whether the Supreme
Court should execute the power requested in the specific case, the First
Chamber ruled that it was indispensable to acknowledge the exceptional
nature of appeals, as provided for in section III, Constitutional Article
105, which establishes the following sine qua non admissibility
requirements, which shall be fully and jointly met: 1. That it is executed,
either by operation of law or by a substantiated petition by the unitary
circuit Court or the Federal Attorney General, 2. That the appeal is
filed against decisions issued by District Judges, 3. That the decision
had been issued in proceedings which the government ("Federation")
is a party, understanding government in a superlative sense, and,
4. The appeal is warranted due to the interest and transcendence
the case.
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Once all the requirements for the execution of the power to attract
were specified, the First Chamber, on those grounds, proceeded to the
analysis of the case under study, declaring the following:
Firstly, it established that the request was made by a legal party
—the Federal Attorney General. Secondly, it indicated that the specific
case was filed through an appeal filed against a decision issued by a
District Judge. In this respect, the Chamber elaborated that, while the
challenged decision —dismissal and nonsuit due to termination
of the criminal action— resolved the appeal and the matter, it was
also true that, due to its nature and effects, it was comparable to an
acquittal.
As for requirement three, the Chamber noted that the decision
was issued in a proceeding to which the government was a party.
It noted that the term "Federation" should be understood as the
"United Mexican States", a political and legal body representing
the nation and with legal capacity. In addition, the intervention of the
government should not be solely considered in the procedural aspect,
but in virtue of the fact that the dispute in question may impact the
highest values and foundation of the nation. As for the matter
originating the petition for exercise of power to attract, the behavior
charged on the defendants was defined as follows: on June 10, 1971,
twelve people were deprived of their lives for belonging to a "students
group" contravening the ideas of the state power apparatus, where
the suspects intervened in their capacity as top officials by issuing
orders to fully or partially destroy the above national students group.
The Chamber deemed that the preeminence required to consider that the
Federation had an interest in the requested exercise of the power to
attract was present, based on the interest of making a determination
regarding the facts that originated the appeal, which may be serious
enough to be considered state crimes.
As for the last of the requirements provided in constitutional
A r t i c l e 1 0 5 , re l a t e d t o t h e c h a r a c t e r i s t i c s o f " i n t e re s t a n d
transcendence", the Court considered that it was equally met for
taking over the study and resolution of the matter originating the
appeal would bring on a possible conflict between both international
and domestic law given the potential retroactive application
of international norms. So, it indicated that determination of the
interaction between legal frameworks at various levels, which per se
have been a cause for debate and subject to various theories in
35
36
RELEVANT DECISIONS
international law, is required. This rendered effective the requirement
above.
Therefore, in view of the above considerations and because all
facts demanded under Article 105, section III, of the Mexican
Constitution have been met, the First Chamber decided to exercise its
power to attract.
Owners of lots located in land confirmed or
recognized that belongs to an agrarian
community that holds duly formalized title
deeds, are not required to support qualified
ownership as established under Article 252 of
the derogated Agrarian Reform Law
Resolution to Opposite Rulings 6/2004-SS. Between the First and
Second Administrative Collegiate Court, both of the Third Circuit.
October 15, 2004. Opinion delivered by Justice Guillermo I. Ortiz
Mayagoitia.
The Second Chamber of the Supreme Court found that there was
contradiction between the criteria held by the Second Administrative
Collegiate Court of the Third Circuit and that issued by the First
Administrative Collegiate Court of the Third Circuit. The two courts
made different findings with respect to the requirements provided by
Articles 66 of the Agrarian Code and 252 of the Agrarian Reform Law
(LFRA) (both annulled) regarding the admissibility of the exclusion of
a piece of property which is located within the perimeter of land
acknowledged and titled to an agrarian community. The Second
Administrative Court considered that, in accordance with the above
precepts, in order for exclusion of a specific piece of property within
the perimeter of land acknowledged and titled to an agrarian community
to be admitted, the title evidencing ownership of the lot to be excluded
is not sufficient, and that in addition, qualified possession for at least
five years prior to the date of issue of the agrarian petition needs to be
proven. On the contrary, the First Administrative Court held that none
of the ordinances mentioned denies the legality of the agreements or
ownership transfer acts made after the issue of the petition for
acknowledgment of communal property. Hence, it will suffice that the
property is recorded in a duly inscribed public deed in order for
exclusion of the communal property to be admitted, or that qualified
possession is evidenced —but not necessarily both.
37
38
RELEVANT DECISIONS
The criteria of the Second Chamber would prevail as binding
precedence. The above Chamber firstly pointed out that, because the
act which generated contradictory rulings related to the exclusion of a
specific piece of property within the perimeter of land of an indigenous
community occured due to the presidential resolution of November
12, 1970 (regarding acknowledgement and issue of titles for property
of said community), analysis of the nature and characteristics of such
resolution was required. Therefore, the Chamber observed that prior
to the reforms of Article 27 of the Federal Constitution, issued in the
Federal Official Gazette on January 6, 1992, in accordance wherewith
the Agrarian Law published by the same means on February 26 of the
same year was enacted, section VII of the above constitutional article
was the basis for the proceedings of confirmation or acknowledgment
and issue of titles of communal property, and of conflicts of limits and
disagreement.
The Second Chamber recalled that the action of acknowledgment or
confirmation and the subsequent issuing of titles to communal property
is admissible by operation of law or by means of a petition by the
interested agrarian community. On the contrary, the action of exclusion
of a specific piece of property located in land confirmed to an agrarian
community was enforced by the owners or qualified holders before
the very authorities of the Ministry of Agrarian Reform, as a right
exercisable within the very proceedings related to acknowledgment or
confirmation and issue of titles to communal property. As the
presidential resolution associated with the confirmation, acknowledgment
or issue of titles to communal property had to exclude all areas
corresponding to private owners outside to the community, the Supreme
Court decided, that all resolutions of this type were not constitutive, but
declarative of the rights whose existence was there acknowledged. All
presidential resolutions regarding confirmation, acknowledgment or
issue of titles to communal property were based on the assumption
that there was no conflict of limits with another agrarian entity and,
whenever applicable, failed to confirm or acknowledge all lots of private
property set in communal land. Furthermore, all private parties, owners
or holders of these lots could request acknowledgment of their
properties in the terms set forth by the law and regulations.
The Court thereby found that for acknowledgment of private
property located in communal land, whose action derives from
the proceeding of confirmation, acknowledgment or issue of titles to
communal property —evidencing possession as established by Article
252 of the now void LFRA— is not required by the party producing
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39
the duly notarized title to property. The presidential resolutions issued in
such procedures are declarative in nature, and there was no related amparo
admissibility condition for there was no intent to affect privately owned
lots whose owners and holders could resort to the agrarian authorities
to request the exclusion of their private specific properties. The issue
is to establish that the excluded plot should not have been included as
communal property regardless of any acknowledgment of the property’s
size or as to its being transferable for agrarian purposes. 16
In the opinion of the Second Chamber , if the claimant grounds
its action on a duly-notarized property title, it is the responsibility of
the appropriate jurisdictional authority to analyze all antecedents and
origin of the property based on evidence produced in the trial to be
able to resolve in accordance with the law. Nonetheless, if the interested
party (i.e., title-holder) grounds his action in the qualified possession
set forth by Article 252 of the now void LFRA, given the absence of a
title in the case at hand, it is indeed necessary to prove all requirements
therein contemplated to grant the acknowledgment of the private
property. (Gaceta Oficial (D.O.F.) dated December 31, 2003).
16
Ruling 2a./J. 161/2004, ib., v. XX, November 2004, p. 66.
The Value Added Tax payment form applicable
to taxpayers under the general tax regime and to
minor taxpayers does not infringe the principle
of tax equity
Amparo under review 835/2004. October 19, 2004. Opinion delivered
by Justice Guillermo I. Ortiz Mayagoitia.
The appellant claimed injuries on the grounds that the decision
challenged violated Articles 77 and 78 of the Amparo Law (LA), by
declaring that Article 2o.-C of the Value Added Tax Law (LIVA),
effective as of January 1st, 2004, infringes the right to tax equity set
forth in constitutional Article 31, section IV, which provides that
taxpayers necessarily have an identical situation with regard to the legal
norm to establishing and governing such tax, unless there are objective
and reasonable grounds to justify unequal treatment.
The Second Chamber of the Supreme Court —as opposed to the
sentence of the Judge a quo— decided that the right to tax equity was
honored by the treatment established in Article 2o.-C of LIVA, which
classified minor taxpayers as holding a legal situation different to others.
In Mexico, a large percentage of commercial businesses are micro and
small companies. In recognition of this, the federal government decided
to promote their development by establishing that such taxpayers
should pay taxes under a special system. 17
Therefore, the Second Chamber asserted that Article 2o.-C of
LIVA sets forth that all individuals paying taxes in accordance to the
17
Ruling P./J. 112/2004, ib., p. 16.
41
42
RELEVANT DECISIONS
minor taxpayer system, in accordance with Title IV, Chapter II, Section III
of the Income Tax Law (LISR), shall pay Value Added Tax (VAT), through
an estimation carried out by the tax authorities of the value of the
activities performed, as opposed to doing so under the general terms
set forth by LISR.
If a taxpayer is classified under an exceptional tax system, he or
she is required to pay VAT in accordance with Article 2o.-C of the law
in question (i.e., through an estimation of the value of the activities
performed by the tax authorities in accordance with the income reported
by the taxpayers in the informative tax return to be filed by taxpayers
for Income Tax (ISR) purposes. Thus, a different treatment as compared
to other taxpayers paying such tax in accordance with LIVA cannot be
deduced.
The Court added that the legislator, by establishing a different
treatment for minor taxpayers for the payment of VAT, as opposed
to those paying taxes in accordance with the general system, took
into consideration the specific characteristics of minor taxpayers;
namely, lower financial/administrative capacity, which sets a difference
between these and other VAT payers.
In the opinion of the Chamber, although it is true that, in accordance
with Article 1 of LIVA, all individuals and corporate entities who, on
national territory, sell goods, render independent services, grant the
temporary use and enjoyment of goods or import goods or services,
are subject to payment of VAT, it is also true that, although Article 2-C
of said law establishes a special taxation mechanism for minor
taxpayers, no discrimination or inequity can be said to exist, for it
specifically contemplates the capacity of minor taxpayers, in keeping
with the principle of tax equity.
Article 2-C of the Value-added Tax Law, effective
as of January 1, 2004, does not infringe the
principles of proportionality and tax equity
Amparos under review 1400/2004 and 1358/2004. Mycoma, S.A. de
C.V., and Rosales, Abogados y Asociados, Sociedad Cooperativa
de Resposabilidad Limitada de Capital Variable, respectively. October
19, 2004. Opinion delivered by Justice Genaro David Góngora Pimentel.
The claimants in amparos under review 1400/2004 and 1358/2004
claimed that Article 2-C of LIVA, effective as of January 1st, 2004, infringes
the right to tax equity and proportionality, as set forth in Article 31, section
IV of the Constitution. In view of this, the Supreme Court, stated that
Article 2-C of LIVA, which sets forth a special manner to determine the
basis for a lien, with respect to individuals paying taxes in accordance
with the minor taxpayer system, in accordance with title V, chapter II,
section III of the Mexican Income Tax Law (LISR), does not infringe the
principle of tax equity.18 The bench of the Supreme Court, indicated that
the legislature is empowered to create categories or classifications of
taxpayers provided that they are not capricious or arbitrary and are based
on objective grounds justifying a different treatment. In the case at hand,
Congress, by establishing a different treatment for minor taxpayer
for the payment of value added tax, as compared to those that pay taxes
under the general system, attended to the specific characteristics of minor
taxpayer’s —a lower financial/administrative capacity, which segregates
the former from the rest of the taxpayers.
In the opinion of the Court, while it is true that, in accordance with
Article 1 of LIVA, all individuals and entities who, on national territory,
18
Ruling P./J. 112/2004, ib., v. XX, November 2004, p. 16.
43
44
RELEVANT DECISIONS
sell goods, render independent services, grant the temporary use and
enjoyment of goods, import goods or services, are subject to pay the
VAT, it is also true that because Article 2-C of such said law establishes
a special taxation mechanism for minor taxpayers, no discrimination or
inequity can be said to exist, given that the capacity of minor taxpayers
is specifically observed, in keeping with the principle of tax equity.
The Supreme Court asserted that the law obliges minor taxpayers
to of fully pay VAT through a specific procedure or mechanism instead
of doing so in the general terms set forth by the appropriate law. It does
so by pointing out that, instead of the accounting referred to in section
I, Article 32 of the law, daily income accounting is to be done through
the segregation of the activities on which taxes are to be paid in
accordance with the various value added coefficients applicable and
when such activities are subject to various rates. Also, for disbursements
made, taxpayers shall produce proof of payment meeting all tax
requirements. Taxpayers shall not be permitted to accredit tax transferred
and shall make monthly payment in the amount resulting from dividing
the estimated yearly tax by twelve. Taxpayers may not issue proof of
payment where tax is expressly and separately transferred and, if issued,
they shall pay the tax under the general system of law as of the moment
on issue. Finally, taxpayers performing activities assessed at rate 0%
may opt to pay taxes under the general system of the law. These
obligations are set in virtue of the special characteristics of a minor
taxpayer, as opposed to those who pay taxes under the general system.
The Court, clarified that taxpayers paying VAT in accordance
with the general system have specific duties due to the characteristics
of their activities, the volume of their operations, and their administrative
and accounting capacity, and the legislator therefore imposes
obligations under the general system. Therefore no violation to the
principle of tax equity was considered to exist.
On the other hand, the Supreme Court warned that Article 2-C
of LIVA provides for a taxation system not applicable to claimants
filing amparo, thus the reasoning formulated by said parties surrounding
the alleged violation of the tax proportionality principle by such law is
not applicable. 19
19
Ruling P./J. 113/2004, ib., p. 17.
Suspension of the claimed act shall be
dismissed whenever transpor t ser vice
concession holder makes a related request
against the detention of the vehicle used to
render such ser vice for not fulfilling the
appropriate legal requirements. (Article 70 of
the State of Puebla Transportation Law)
Resolution to Opposite Rulings 132/2004-SS. Between the Third and
First Administrative Collegiate Courts of the Sixth Circuit. October
27, 2004. Opinion delivered by Justice Guillermo I. Ortiz Mayagoitia.
The points of contradiction lay in determining whether compliance or
noncompliance with the requirement in section II, Article 124 of the
Amparo Law (LA) must be indicated whenever claimants bearing
the capacity of public transportation licensees ostensibly fail to meet the
legal requirement that the vehicle used for the services rendered should
not be more than 10 years old, and whether to grant or deny the suspension
of the act claimed.
The Second Chamber recalled that, in accordance with paragraph
one, section X of Article 107 of the Constitution, admissibility of the
suspension of the contested act requires consideration of the nature of
the presumed violation, the difficulty to repair all damages that may
affect the claimant in the execution, damages upon third-parties, and the
public interest represented by execution of the rule. On the other hand,
Articles 122 and 124 of LA make clear that the objective of suspension
is to stopp, paralyze or maintain things as they are in order to avoid that
the contested act, its execution or consequences are completed, thereby
destroying the subject of amparo, and avoiding material prejudice
difficult/impossible to repair upon the claimant; provided, however,
all requirements for suspension admissibility are met.
The Chamber added that the execution of the power granted by
LA to the District Judge regarding decision on the admissibility or
45
46
RELEVANT DECISIONS
inadmissibility of the suspension, implies careful, detailed study of
the circumstances specific to the case and its confrontation with the
objectives which, through all legal requirements for admissibility of
the measure, intend to be achieved in accordance with Article 124
of LA, with respect to the difficulty of repairing such damages and in
relation with the potential injuries to the social interest and the
provisions of public order generated by such concession.
If the District Judge determines admissibility of the suspension,
the Chamber judge must order that things remain the same and take
all measures as deemed advisable in order to avoid injuries on the
interested parties or that rights of third-parties are infringed upon —to
the extent possible— in the intelligence that suspension must be denied
if consideration is that each and all requirements for admissibility of
that measure are not met.
One such requirement is that no damage is inflicted upon the
social interest, and that no provisions of public order are contravened.
In this regard, the Chamber indicated that the notions of public order
and the social interest are linked to the extent that the former tends
toward an arrangement or composition of the community in order to
meet collective needs, strive for welfare, and avoid wrong-doing upon
the population, while the latter is translated into the need to benefit
society or avoid any damage, disadvantage or disruption to it. So, provisions
of public order are those included in the legal ordinances looking to
establish rights for the collectivity in order to avoid disruption and
strive for meeting needs or creating advantages. Social interest shall
be considered the fact, act or situation providing an advantage or good to
society or the satisfaction of a collective need, or otherwise, the prevention
of disruption or public damage.
Based on these concepts, the Court considered that in the amparo
trials resulting from the pronouncement of the Collegiate Circuit Courts
that issued the contradictory rulings, the claimants were licensees of
public transportation in the State of Puebla, protesting the detention
by the appropiate authorites of the vehicles used to render such service.
Another common trait consisted of the fact that claimants acknowledged
that the vehicles were older than 10 years. In view of their age, the
Chamber had to decide with respect to Article 70 of the Transportation
Law for the State of Puebla —which precisely demands from licensees
of public transportation to render services using motor vehicles no older
than 10 years.
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In order to determine whether nonobservance of the requirement
provided for in this article may be translated into damage to the social
interest and the public order, the Second Chamber deducted that the
objective of the law was to "comprehensively modernize the road
infrastructure and the public transportation in the city of Puebla
and neighboring cities, enhancing system capacity, safety, quality, and
efficiency". Emphasis is put on concern about having "obsolete/
inappropriate equipment, with a growing number of low-capacity units,
older than the average age of vehicles providing the public transportation
service". This, in turn, prevents "fleet modernization and adequation, supply
operation control, environmental impact/accident reduction".
The Chamber found that such a provision seeks to promote the
public interest and the guardianship of the public order for, on the one
hand, it tends toward passenger safety and, on the other, to environmental
impact reduction, as defined in Article 3, section XIX of the General Law
of Ecological Balance and Environment Protection (LGEEPA). As for
the benefit of the community deriving from environmental protection,
LGEEPA reference is made in Articles 1, 2, 4, and 7. Therefore, in the
judgment of the Chamber, if environmental protection and preservation
of the ecological balance are considered to be in the public interest
and of public use, the authorities must adopt all necessary measures
for such purpose, including state measures and if the Transportation
Law for the State of Puebla sets forth that all units rendering public
service must be no older than 10 years, the conclusion would seem to
be that the community is indeed interested in observing that norm. 20
The Chamber specified that, when license holders protest
detention of vehicles used for public transportation, which fail to meet
the requirement provided for in Article 70 of the Transportation Law
for the State of Puebla, suspension of the contested act must be denied
based on Article 124, section II of LA. Otherwise, this would be
detrimental to the social interest since society is interested in the
provision of public services in safe conditions for users, as well as
causing the least environmental impact.
20
Ruling 2a./J. 166/2004, ib., December 2004, p. 545.
47
NOVEMBER
2004
Article 87 of the State of Oaxaca Municipal
Law is unconstitutional
Constitutional dispute 43/2004 Municipality of San Pedro y San Pablo
Tequixtepec, State of Oaxaca. November 9, 2004. Opinion delivered
by Justice Margarita Beatriz Luna Ramos.
The precepts of the Mexican Constitution deemed violated by plaintiff
are: 14, 16, and 115, section I, Paragraph Three.
The claimant challenged article 87 of the Municipal Law for the
State of Oaxaca, published in the Official Gazette of that state on
January 10, 2003, as well as decree 341, whereby the State Congress
approved the start of the dissolution proceeding surrounding the City
Council and the members of the provisional Municipal Council of San
Pedro y San Pablo Tequixtepec, and provisionally suspended the City
Councils, as published in the Official Gazette of that State on January
13, 2004.
It was claimed that the challenged article, as well as the decree
supported by such article, violated Article 115, section I of the Federal
Constitution, for, allegedly, the provisional suspension was decreed
without previous notification of the start of any proceedings. In an
earlier ruling, the Court determined that the act whereby a legislature
declares the provisional suspension of a City Council, is susceptible to
analysis by the Supreme Court of Justice in a constitutional dispute.
Despite being ordered by the local congress as a precautionary measure
within the dissolution proceeding against the City Council, the star of
the dissolution proceding is the beginning of such proceeding. In itself
49
50
RELEVANT DECISIONS
and upon becoming effective, it immediately and directly affected the
City Council, preventing continuity of its duties of government. Such
impact is beyond repair, for all orders issued through that type of law
are not retroactive —especially if the City Council of the claimant
municipality is suspended as of that act becoming effective. In view of
the indetermination in the duration of the precautionary measure, it is de
facto considered a dissolution of the City Council.21
The bench of the Supreme Court observed that Article 115, section
I —especially, paragraph three— of the Federal Constitution, implies
that legislatures bear the power to suspend City Councils; declare their
dissolution, and suspend or revoke the order of any of its members in
clear detriment to the City Council. These acts fully affect the City
Council in that they prevent the exercise of municipal rule (e.g.,
declaration of the suspension or dissolution), and acts affecting the
structure of City Council. (e.g., suspension or revocation of an order of
any of its members)
The Supreme Court, specified that, when affecting a City Council
under any of the above hypotheses, the legislatures are required to
observe the following: a) the law shall outline the serious causes that
justify the suspension of City Councils, declare their dissolution, or
suspend or revoke the order of any of its members; b) prior to issuing
the act, the City Council shall be given the opportunity to present
evidence and bring pleadings forth, and c) the agreement for suspension
or dissolution of a City Council or suspension or revocation of an order
by any of its members, must be agreed to by two thirds of the members
of the legislature.
The Court, indicated that in the exposition of reasons behind the
1983 reform to Article 115 of the Federal Constitution, integration
and continuity of municipal exercise of duties were pointed out as a
prerogative. In the judgment of the Court, the teleology of the
fundamental precept above makes it clear that the principle reasoning
behind the reform was the protection of City Councils as municipal
institutions, safeguarding their structure and the continuity of
performance of their governmental duties during a given term. The
mutilation of city councils goes against popular will —thereby affecting
the municipal entity.
21
Ruling P./J. 16/2005, ib., v. XXI, April 2005, p. 1089.
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51
Now, in relation with the provisional suspension of City Councils,
the Supreme Court, observed that, in accordance with Articles 86 and
87 of the Municipal Law for the State of Oaxaca, the State legislature,
when faced with a serious violent situation, wiht a lack of authority
or state of governance, is empowered to suspend a City Council as a
provisional measure as of the start of the dissolution proceeding. The
Court emphasized that constitutional Article 115 sets forth the possibility
that local congresses suspend City Halls provided, however, certain
requirements are met under penalty that, in case of nonobservance,
the resulting act or norm shall be unconstitutional.
Therefore, the Court considered that Article 87 of the Municipal
Law for the State of Oaxaca, upon consideration of the power of the
local congress to provisionally suspend City Councils, violates
constitutional Article 115, section I, paragraph three. Said article
empowers state legislatures, to suspend City Councils in the manner
and terms set forth in its provisions. This implies momentary separation
of the municipal body from its duties. The concept of provisional —or
definitive— suspension is not set forth, as the article generally refers
to any type of suspension, which by its nature, should be temporary.
On the other hand, the oaxacan law does not require the legislature to
—prior to suspension— give the municipality the opportunity to present
evidence and bring pleadings forth in relation with the reasons that may
bring on the disintegration of its City Council, contravening the
provisions of Article 115 of the Federal Constitution consisting
of giving prior hearing to the municipality subject to the hypothesis of
suspension of duties.
Thus the Supreme Court, declared void Article 87 of the Municipal
Law for the State of Oaxaca, and hence, decree 341 of that provision.
As this constitutional dispute deals with a general provision of Oaxaca,
challenged by one of its municipalities, as well as with respect of its
first act of application, nullity declaratory was only effective on the
parties.
The Supreme Court decides on the nullity of
transitory articles six of the Federal Income Law
for the 2002 and 2003 tax is, and transitory
article four of the same law for the 2004 tax
year as a result of contravening the Federal
Constitution
Unconstitutionality action 8/2004 and joint action 10/2004. Attorney
General of the Republic and Federal Deputies members of the 59th
Legislature of the Congress of the Union. November 9, 2004. Opinion
delivered by Justice Guillermo I. Ortiz Mayagoitia.
The norms challenged in the case were transitory Article six of the
Federal Income Law (LIF) for tax years 2002 and 2003, and transitory
Article four of the same law for tax year 2004. The Federal Attorney
General and the members of the 59th Congress, adduced that said
transitory Articles were in contravention with the Federal Constitution
because the Congress lacks the power to order the Ministry of Finance
and Public Credit (SHCP) to transfer the the government’s shares of a
majority-state-owned company, without observing the proceeding
established for such a purpose. Unconstitutionality was also based on
the fact that the Executive Power would be responsible for deciding
on the use to be made of the shares of the comprehensive port
administrations which are part of the state-related public administration.
The bench of the Supreme Court, pointed out that constitutional
Article 90 indicates that the Congress is entitled to issue general norms
that, in observance with the basic guidelines of federal public
administration organization set forth in law, seek to regulate the
working, operation, and control of the state-related public
administration entities, as well as the manner in which they relate with
the Executive Power. For its part, Article 89, section XIII of the Federal
Constitution, sets forth that the Executive has the direct power to enable
and appoint location of ports and sea/border customs, as well as to
carry out all affairs related to their operation.
53
54
RELEVANT DECISIONS
The Court, noted that transitory Articles six for fiscal years 2002
and 2003 and transitory article four for fiscal year 2004 of LIF, define
comprehensive port administrations as companies where the state
has a majority share and are a par t of state-related public
administration assisting the Executive branch in conducting the federal
public administration. The Court added that, while it is true that,
according to constitutional Article 90, the Congress bears the power
to legislate on the federal public administration and state-related
public administration entities, it is also true that its contents imply no
power to authorize it to issue a provision such as that challenged in
the case at hand. 22
The Court clarified that, in terms of constitutional Article 90, the
organic law issued by the Congress shall define the general basis for
creation of state-related entities and the intervention of the Executive
branch in its operation. The laws shall determine the relationships
between such entities and the Executive, or between such entities and
the Ministries of State and administrative departments. This translates
into a constitutional attribution in favor of said legislative organ to
issue general provisions related to the performance of federal public
administration.
In addition, the Court, resolved that according to Article 89, section
XIII of the Federal Constitution, the Executive branch is responsible for
procuring and designating the location of ports and sea/border customs,
as well as for carrying out carry out all affairs related to their operation.
Moreover, because this power belongs exclusively to the Executive, it is
obvious that one of its responsibilities is also to decide on, or account
for, shares belonging to the Federal Government in such entities.
Therefore, the Court, found that all the provisions contested were
in violation of Articles 89, section XIII, 90, 26, second to last paragraph,
and 116, section VII of the Federal Constitution, and also went against
the principle of constitutional supremacy. The reason was that issuance
by Legislature and its instructions that the SHCP should transfer to
the states and municipalities an equity share of the Federal Government
held in the comprehensive administration of ports, overlooked the
competence entrusted to the Executive through the above constitutional
items. It did not limit itself to establishing the general guidelines for a
22
Ruling P./J. 11/2005, ib., March 2005, p. 809.
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55
concrete act of administrative provision relating to the comprehensive
port administrations through the challenged precepts.
The Court clarified that it is the exclusive power of the Executive
Branch, via the Ministry of Communications and Transportation, to
administer ports and port-related services, including comprehensive
port administration. Moreover, because they are part of the state-related
public administration under its charge, majority-state-owned companies
in accordance with items 1, 3, and 46, section II, subsection A) of the
Organic Law of Federal Public Administration (LOAPF), this also makes
evident that it is the exclusive faculty of the Executive to decide on the
transfer of shares held by the Federal Government in such entities, as
established on the Federal Law of State-Related Entities (LFEP). The
legislator, in accordance with Article 90 of the Federal Constitution, granted
the Executive these powers in the field of public administration, as
described both in LOAPF and the Port Law.
Given the considerations above, the Court, in plenary, declared
the nullity of transitory Articles six for tax years 2002, and 2003 and
transitory four for tax year 2004 of LIF, due to their contravention of
Articles 89, section XIII, 90, 26, second last paragraph, and 116, section
VII of the Mexican Constitution.
The First Chamber of the Supreme Court
decides on the scope of the right to defense
during the preliminary investigation
Direct Amparo under review 1236/2004. November 10, 2004. Opinion
delivered by Justice José Ramón Cossío Díaz.
The first Chamber of the Supreme Court considered all claims of the
appellant groundless given that the Collegiate Court whose sentence was
contested had failed to interpret Article 20, paragraph A, sections II, IX,
and X of the Political Constitution —especially as regards the right to
appropriate defense in a preliminary investigation. The First Chamber
indicated that a reading of the considerations set forth in the appeal
showed that the Collegiate Circuit Court had essentially asserted
all considerations made by the First Chamber in relation with the
construction of the above constitutional foundation, by resolving on
direct amparo under review 1236/2004, which originated ruling 1a.
CLXXI/2004.23
The criterion contained in that ruling was also maintained when
resolving direct amparos under review 759/2005, 1782/2005, 1908/
2005 and 2151/2005, in order to put together ruling 1a./J. 23/2006.24
In general terms, the First Chamber of the Supreme Court determined
—in relation to the scope of the right to appropriate defense at preliminary
investigation, as referred to in sections IX and X of Article 20, subsection A,
23
Semanario Judicial de la Federación y su Gaceta, Novena Época, v. XXI, January
2005, p. 412.
24
Ib., v. XXIII, May 2006, p. 132.
57
58
RELEVANT DECISIONS
of the Federal Constitution—, that the former is restated as of the moment
on which detainee is handed over to the prosecuting authorities. This
implies that none of the detainee’s guarantees during the criminal
process may be conceived as a mere formal requirement and, to ensure
their enforcement and to permit application, participation by the
defendant is required as from the moment he is handed over to
the prosecuting authorities. Therefore, in relation to section II of the
above constitutional precept, according to which deposition of
the detainee with the prosecuting authorities or Judge —without the
assistance of a lawyer— lacks all discovery-related value, the First
Chamber considered that the above assistance shall not only be linked
to the physical presence of a lawyer with or during performance by the
prosecuting authority, but shall also be construed in the sense that
the person that is turned over to the prosecuting authorities has access to
effective help by a counselor. Then, the person arrested in flagrante
delicto, is entitled to be interviewed by the person acting as his or her
lawyer, immediately upon request and before declaring before
the prosecuting authority. This may be done by detainee, to relate the
historic truth of the facts, with no fear, efficiently and in a manner
preventing possible vices in the examination process, thereby providing
true efficacy to the right to appropriate defense granted by the
Constitution. As a consequence, the first deposition made before
the Prosecuting Agency shall become corrupted and shall be illegal
when no private pre-interview with lawyer has occurred.
Article 29, Section VII of the Value Added Tax
Law, effective as of the 2004 tax year, respects
the principle of tax equity and legality
Amparo under review 1463/2004. Diamond Hotels Playacar, S.A.
de C.V. November 12, 2004. Opinion delivered by Justice Genaro
David Góngora Pimentel.
In the case at hand, the constitutionality of Article 29, section VII of
the Value Added Tax Law (LIVA) in effect for tax year 2004 was
challenged for allegedly infringing the principle of tax legality. The
second Chamber of the Supreme Court considered that these arguments
were groundless, given that the law does respect this constitutional
principle. The essential elements of such tax are expressly provided
for in LIVA, and it is not left open to arbitration by a third party outside
of the tax relation, as related to the fulfillment of all requirements
governing the application of a 0% rate for Value Added Tax (IVA)
calculation purposes.
The Chamber noted out that paragraph one, Article 29 of LIVA,
in effect for tax year 2004, sets forth that companies residing in the
country shall calculate such tax by applying 0% to the value of the
sale of goods or service rendering, when one or the other are exported.
The service supplier is responsible for performing a taxable act but
the end-user is also a party to the tax relationship. As a general rule, the
end-user absorbs the burden or, as the case may be, obtains the benefit
of the exemption/zero rate system. For this reason, the requirement
for the latter to meet all obligations determined to ensure that the IVA
relating to hotel and similar services is applied at a 0% rate, does not
59
60
RELEVANT DECISIONS
infringe the principle of tax legality, more so given that the subsection in
question indicates the requirements to be met.25
In addition, the Second Chamber of the Court explained that
Article 29, section VII of LIVA, effective for tax year 2004, does not
grant unequal treatment to equals,26 for companies residing in the
country that sell goods or render hotel and similar services to foreign
tourists coming in the country to exclusively take part in conferences,
conventions, exhibitions or fairs to be held in Mexico, constitute one
single taxpayer category, taxable at the 0% rate.
With respect to whether the challenged norm infringed the
principle of tax equity, the Chamber clarified that this norm does not
set forth, as a requirement for application of IVA at the 0% rate that
hotel companies rely on sufficient infrastructure to hold congresses,
conventions, exhibitions, or fairs in the hotel facilities. The only
requirement is to render an accommodation service. Said subsection,
in providing that foreign tourists shall exhibit to the hotel a document
evidencing their migratory status in terms of the General Population
Law (LGP), and the fact that all services are paid for via a credit card
issued abroad and the contracting of hotel and similar services is made
by event organizers, does not set forth as requirement that, for
application of the 0% rate, hotels must have sufficient infrastructure to
hold conferences, conventions, exhibitions, or fairs, but refers only to
the accommodation service, and to the fact that the 0% rate shall be
applied when foreign tourists, among other requirements, come into
the country to take part in the above events —which may or may not
be held in the hotel facilities. So, academic (public or private) or
business institutions may organize congresses, conventions, exhibitions,
or fairs, within the national territory and encourage the participation
of foreign tourists.
The Chamber explained that conferences, conventions, exhibitions,
or fairs, may take place in the various hotel facilities. This situation
shall not prevent the companies rendering accommodation services to
be qualified within the generating concept. For such purposes it suffices
to merely render accommodation services to foreign tourists coming
in the country to participate in conferences, conventions, exhibitions,
25
Época, v. XXI, March 2005, p. 353.
26
Ruling 2a./J. 24/2005, ib., p. 331.
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or fairs providing that such tourists prove their migratory status, pay
for the ser vice via a credit card issued abroad, and that the
accommodation services are hired by the event organizers. Hence,
the challenged precept does not create a different taxpayer category
by establishing one single generating fact —consisting of rendering
accommodation and similar services to foreign tourists coming in the
country exclusively for the purposes mentioned above given that special
treatment is granted to the companies resident in the country. It is not
a condition guiding the application of a 0% tax rate that the hotel
companies should have the infrastructure to hold such events.
61
All norms contained in the decree amending
and adding to Articles 100 and 102 of the Traffic
Regulations, respectively, and the notification
of implementation of the Program for the Control
and Preclusion of Driver Alcohol Consumption,
both to be implemented in the Federal District,
as published in the Official Gazette for that
district on September 18, 2003, cannot be the
object of amparo claims merely because of their
effectiveness
Resolution to Opposite Rulings 133/2004-SS. Between the Fourth
and First Administrative Collegiate Courts of the First Circuit.
November 12, 2004. Opinion delivered by Justice Guillermo I. Ortiz
Mayagoitia.
The Second Chamber of the Supreme Court resolved conflicting rulings
upon resolution of the following problem: Whether the decree dated
August 30, 2003, published in the Official Gazette of the Federal District
dated September 18 of the same year, whereby Article 100 was
amended and Article 102 was added (both of the Traffic Rules for the
Federal District [RTDF]), as well as approval and issue by the Secretary
of Law Enforcement of the Government of the Federal District, of the
accord designated "Notification of setup of the Program for the Control
and Preclusion of Driver Alcohol Consumption in the Federal District",
published in the above Gazette on the aforementioned date, contains
norms that are by nature self-applicative or multipurpose, so as to
determine the admissibility of the amparo trial when no specific act of
application is claimed.
From the contents of ruling P./J. 55/97, the Chamber advised
that self-applicative laws are characterized as provisions that, in
accordance with the legal requirement therein set forth, bind the citizen
to compliance as of the effective date, in virtue that they create,
transform, or terminate specific situations of law. On the other hand,
whenever obligations to do or not to do, provided by law, are not
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RELEVANT DECISIONS
automatically created solely by their coming into effect, but a diverse
act conditioning obligation is required, then the provision shall be
multipurpose.
In view of the above, the Chamber found that the norms contained
in the decree and notification mentioned above do not create, transform
or terminate specific situations at law by coming into effect. Thus, no
amparo may be claimed. For the related effects to materialize, random
and rotating setup of control posts to carry out detention of vehicles in
designated spots, as well as to interview the appropriate drivers, must
be established by the Secretariat of Law Enforcement of the Federal
District (SSPDF). The Chamber explained that detention by police
officers to verify compliance with the obligation for drivers to refrain
from driving vehicles whenever the levels of blood alcohol or breathed
are in excess of that established in Article 100 of RTDF is not automatically
validated merely by the entry into effect of the aforementioned
provisions; rather, a different act must occur (the condition for its
application) —the setup of a control post to conduct verification of
observance of the norm. We are, hence, talking about multipurpose
provisions that are challengeable via an amparo upon the first act of
application. Furthermore, even if officers from SSPDF are empowered
to exercise verification as authorized in the above rules, while such
rules are not executed, no affectation whatsoever is produced on the
legal sphere of citizens, for mere enactment does not generate any
related obligations whatsoever.27
27
The fact that the company that is the object of
a lawsuit is on strike must not be taken to mean
that its job offerings are in bad faith
Collegiate Court of the Sixth Circuit, currently Second Collegiate
Civil Court of the Sixth Circuit, and Thirteenth Collegiate Labor
Court of the First Circuit. November 19, 2004. Opinion delivered
The Second Collegiate Court of the Sixth Circuit, currently Second
Collegiate Civil Court of the Sixth Circuit, and Thirteenth Collegiate
Labor Court of the First Circuit reached different conclusions with
respect to the same juridical question. While the then Second Collegiate
Court of the Sixth Circuit, currently Second Collegiate Civil Court of
the Sixth Circuit, resolved that a job offer is fraudulent when the defendant
company is on strike, since such offering could not be materialized
until such strike came to an end, the Thirteenth Collegiate Labor Court
of the First Circuit decided the job offering is made in good faith, for it
considered that the company did not omit the existence of the strike
and that reinstatement was subject to a fact that could not destroy
good faith. The company’s conduct does not denote the intention to
not carry out reinstatement, but it was conditioned to an element
beyond its will.
The Second Chamber was required to resolve on the following
point of contradiction: If a job offer should or should not be deemed
in bad faith when the defendant company is on strike.
In the opinion of the Chamber, in order to determine whether a
job offer is given in good or bad faith, one should analyze all factors in
a prudent and rational manner, regarding whether the employer’s
65
66
RELEVANT DECISIONS
intention is to continue the work relationship. Given the circumstances,
a job offer in the same terms and conditions may not be deemed to be
in bad faith when the defendant company is on strike. This labor right
is not directly linked to the particular conflict derived from the termination
claim. It only temporarily suspends work activities, but does not imply
termination of the work relationship. Thus, even though job reinstatement
may not be immediately materialized, this does not fraudulently alter the
original terms and conditions, neither may it be said that employer
has no intention of continuing the work relationship, since, by virtue
of the strike proceeding, claimant reinstatement is feasible, according
to the current proceeding status.28
28
Ruling 2a./J. 190/2004, ib., v. XX, December 2004, p. 424.
The amparo granted due to the for mal
unconstitutionality of a law has limited effects
on Articles applied to the claimant, and is not
effective for the totality of the law
Direct amparo under review 1546/2004. November 26, 2004. Opinion
delivered by Justice Juan Díaz Romero.
Upon resolving amparo under review 1546/2004, the Second Chamber
of the Supreme Court ordered that, when amparo is granted to claimant
against the law, for considering that the legislative process is in
contravention of the Federal Constitution, protection by the Federal
Courts may not embrace the complete law containing the claimed-for
precepts as a whole in virtue of a specific application act, but only
the provisions declared unconstitutional.29
To reach this conclusion, the Chamber began by specifying that
challenging a law in an amparo trial requires the claimant to demonstrate
that its norms affect its legal sphere either by simply coming into effect
or because of the effects caused by an act of application.
Furthermore, the Chamber warned that, for admissibility of an
amparo trial, if a citizen argues the inconstututionaly of a law by virtue
of an act its application expressly or tacitly, the citizen must be protected
in that concrete legal situation. It is also necessary to consider that, in
order to challenge a general norm upon its entry into effect, the citizen
must demonstrate that such norm transcends into its legal sphere,
thereby generating detriment to the citizen.
29
Ruling 2a. CXI/2004, ib., v. XXI, January 2005, p. 603.
67
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The Court also pointed out that, in order to demonstrate that a
general self-applicative norm affects the claimant’s legal interest, it is
necessary to, in principle, analyze the situation of fact in which the
claimant is to be placed in order to suffer detriment through the entry
into effect of the former to be able to demonstrate whether the evidence
presented matches the assumption of facts generating the legal
consequence provided for in the challenged norm. Otherwise, an
irrelevant fact is not sufficient to challenge the corresponding law.
Based on the above, it was pointed out that when claimant
challenges a taxation system or the norms governing a given tax
payment that is self-applicative by nature, he is not required to qualify
under every hypotheses provided for by the tax payment, even with
respect to the norms having a bearing on additional or variable
obligations. It suffices for the taxpayer in question to demonstrate that
he is a payer of the related tax, for him to have the legal capacity to
challenge each of the precepts that may be applied to the taxpayer
now or in the future, due to the close relationship between such
provisions in terms of their meaning, scope or application. The taxpayer
is compelled to observe such system from the entry into force of the
law; however, in the case of multipurpose laws, the claimant must
demonstrate the first specific act of application of the legal provisions
in question, for, in such circumstances, the capacity as a taxpayer of
that tax is not sufficient to challenge the whole system or the norms
surrounding all possible aplications. It is also necessary to qualify under
each hypothesis as provided for in the norm, except for the requirement
that a close relationship should exist between the two.
Moreover, the Chamber added that the right of objection to norms
—derived either from their mere entry into effect or by virtue of a
specific act of application— bears particular nuances when, apart from
claiming the norm’s material unconstitutionality, formal constitutionality
of norms is challenged.
In this respect, the Court specified that material unconstitutionality
refers to the attribution of vices of precepts contained in the law which
invade the legal sphere and directly affect of claimant, while formal
unconstitutionality of a law implies the exposition of vices in the legislative
process that gave rise to the law. In such cases, general or particular
aspects of the legislative process may be challenged, without requiring
proof of violation with regards to the contents of the precepts applied
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to the claim act, since in order to analyze constitutionality, challenging
the legislative process is sufficient.30
Moreover, the Court stated that when claimant challenges different
legal provisions —due to their close relation— claimant may challenge
the formal constitutionality of the general aspects involved in cach
provision, and hence, all challenged articles, as well as the particular
aspects of the legislative process. However, the claimant does not have
the legal capacity to challenge other specific topics of the same process
pertaining to different provisions of the law, for the fact that they are
not part of the systemic challenge was considered undeniable, apart
from the fact that the same have not resulted in actual harm to the
citizen. Thus, the lack of standing to claim unconstitutionality becomes
evident, for such a claim may not depend on acts of the legislative
process not invading his or her legal sphere.
Likewise, the Court elaborated on the fact that particularization
of the harm caused by the legal precept, in relation to the claimant,
allows him or her to challenge all those provisions related to its meaning,
scope, or application, and, in turn, to challenge all vices in the legislative
process culminating in the issuance of the law in which they are
contained. It pointed out, though, that not every legislative inaccuracy
may be suitable to claim unconstitutionality of the law and, hence, of
the specific articles, but only in relation to those generally or specifically
making reference to it, and not pertaining to legislative vices with
respect to other precepts contained in the law.
Lastly, the Chamber pointed out that total challenge of a law shall
not be mistaken for its formal unconstitutionality. The claimant may
only challenge those normative portions applied in the claimant’s
detriment or those under which he is classified but not the whole legal
ordinance. with regards to formal unconstitutionality, questions
regarding one provision gives rise to question the legislative process in
its generalities or particularities as related to this provision. It further
insisted that no specific aspects of such process linked to other provisions
or taxes may be challenged, nor may a declaration of generalized
unconstitutionality on every law be issued.
30
Ruling 2a. CX/2004, ib., p. 604.
69
Article 204-B of the Federal District Financial
Code establishing water and drainage network
usage rights derived from authorization, or those
governing their modification, are in violation
of the principles of tax proportionality and
equity. (Current legislation as of 2003)
Resolution to Opposite Rulings 171/2004-SS. Between the Eight and
Thirteenth Administrative Collegiate Courts of the First Circuit.
November 26, 2004. Opinion delivered by Justice Genaro David
Góngora Pimentel.
In November 2004, the Second Chamber of the Supreme Court
resolved that Article 204-B, section I, of the Financial Code for the
Federal District [Código Fiscal para el Distrito Federal (CFDF)], amended
through public decree published in the Official Gazette of the Federal
District of January 31, 2002 (applicable in 2003), upon setting forth
different rates to authorize the use of water and drainage networks or
to amend their condition, as well as for the analysis of petition and
administrative/legal technical documentation implied by that
authorization, considering elements foreign to the service —like the
number of square meters of construction, the use intended for the real
property (housing, non-housing or warehouse) and whether parking
spaces are available—, infringes the guarantees of proportionality and
tax fairness as provided for in Article 31, section IV of the Federal
Constitution, for different amounts are payable for a single service
granted in similar conditions, and the real object of the service rendered
is neglected. This involves the reception of a petition, the analysis of
the petition, and the authorization process. No technical deployment
is necessary to verify whether granting of the authorization is
indispensable for the administration, or to determine the manner in
which the service will be rendered.31
31
Ruling 2a./J. 192/2004, ib., v. XX, December 2004, p. 385.
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The Second Chamber came to the above conclusion upon resolving
opposing rulings 171/2004-SS, involving the conflicting criteria of the
Eighth and Thirteenth Administrative Collegiate Courts of the Firts
Circuit, both of which pronounced on the same legal matter, related to
determining whether the law cited above, respected the principles of
tax fairness and tax proportionality provided for in Article 31, section
IV of the Federal Constitution. The Administrative Collegiate Court of
the First Circuit maintained that the provisions of Article 204-B of CFDF,
applicable in 2003, respect the principles of tax fairness and tax
proportion because they anticipated the cost contemplated for the
activity to be carried out by the administrative authorities before
determining admissibility of the authorization for the connection to
water/drainage, or modifications of the conditions of use, as well as
the analysis and processing implied by said authorization, is related
to the number of square meters and the use intended for the real
property in question. For its part, the Thirteenth Administrative
Collegiate Court of the First Circuit found that Article 204-B of CFDF
does not respect the principles of tax fairness and tax proportionality.
The purpose of the real property and the benefit obtained by the passive
party bears no relation to the purpose of the service rendered by
the State —which basically consists in the receipt of the petition and the
processing of the appropriate authorization.
The fact that the challenged legal provision was repealed by decree
issued on December 26, 2003 did not have an effect in the award, for
even if the criterion set on its constitutionality would not affect the
specific legal situations involved in the cited cases, it was feasible that
there were some matters pending that, governed by this article, would
be resolved in accordance with the criteria that would be set forth after
resolving the conflicting rulings.
DECEMBER
2004
Corporate entities are empowered to sue for
repair of moral prejudice whenever the
consideration in which they are held by others
is affected
Resolution to Opposite Rulings 100/2003-SS. Between the Eighth
and Thirteenth Civil Collegiate Courts of the First Circuit. December 1,
2004. Opinion delivered by Justice Juan N. Silva Meza.
The resolution of opposing rulings 100/2003-PS involved whether, in
accordance with Article 1916 of the Civil Code for the Federal District
[Código Civil del Distrito Federal (CCDF)], entities suffering moral
prejudice can demand appropriate compensation, or whether such precept
does not grant them any rights whatsoever to demand appropriate
compensation, due to the fact that such right is exclusive of individuals.
The Eighth and the Thirteenth Civil Collegiate Courts of the First Circuit
came to different conclusions on the matter.
The Thirteenth, Civil Collegiate Court of the First Circuit maintained
that, based on Article 1916 of CCDF, business corporations may claim
damages for non-pecuniary loss experienced, while the Eighth Civil
Collegiate Court of the First Circuit, deemed that Article 1916 does
not grant any rights whatsoever to an entity suffering injuries upon
non-estate property to demand the corresponding damages, for this
legal precept exclusively refers to individuals.
Upon resolution, 32 the First Chamber of the Supreme Court
indicated that, in accordance with Article 1916 of CCDF, it is legally possible
for entities to demand damages for non-monetary loss. This is because
32
Ruling 1a./J. 6/2005, ib., April 2005, p. 155.
73
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the moral prejudice suffered by a person in terms of his feelings,
affections, beliefs, decorum, honor, reputation, private life, health and
physical appearance, or in terms of his reputation with others, is
tantamount to an injury and compels the responsible party to offer
compensation by means of monetary damage. Furthermore, if it
is considered legally possible that, alongside individuals, corporate
entities may also be subject to rights and obligations (in accordance
with Articles 25 through 27 of the above code) and with legal capacity
apart from that of its members, as established in Article 2 of the Mexican
Corporations Act. If the law grants them capacity as entities by acquiring
unity and cohesion through the legal capacity, and such technical
construction allows them to acquire individuality in a manner similar to
a human being, whenever the moral prejudice suffered relates closely
to the rights of legal status, by comparison and analogy, compensation
for damage to its reputation and honor, may be granted to corporate
entities.
Article 29, Section VII of the Value Added Tax
Law, effective as of 2004, does not breach the
principles of tax equity and legality
Direct amparo under review 1482/2004. December 1, 2004. Opinion
The litis was limited to determining whether the order issued by the
District Judge complied with the law, in light of the grievances expressed
by the appellant entity i.e., whether the Judge failer to duly analyze
the matter exposed in the lawsuit, where it was asserted that Article
29, section VII of the Value Added Tax Law [Ley del Impuesto al Valor
Agregado (LIVA)], applicable in 2004, infringes the principle of tax
equity set forth in Article 31, section IV of the Federal Constitution.
The First Chamber noted that, Article 29, section VII of LIVA sets
forth the payment of a 0% rate in the rendering of hotel and similar
services by hotels to foreign tourists coming to the country to participate
exclusively in conferences, conventions, exhibitions or fairs. The Chamber
observed that the Article in question sets forth the essential elements of
IVA, applying the 0% rate to the value of the sale of goods or rendition
of services, when one or the others are exported.
Furthermore, the Chamber noted that section VII sets forth the
essential elements of IVA. Paragraph two of this section defines what
is understood by "hotel and similar services" for purposes of applying the
preferential rate. Therefore, the article in question does not infringe
the principle of tax legality contained in Article 31, section IV of the Political
75
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Constitution of the United Mexican States, because IVA is provided in
a specific law and provides legal certainty to citizens, for it clearly
defines the aforementioned elements.33
The Chamber pointed out that the appellant had no reason to assert
that the challenged norm delegates to a third party the arbitration
of the execution of a taxable event, for the fact that the norm
establishes that the exploitation of hotel and related services shall be
understood to be those "rendered by hotel companies to foreign
tourists coming in the country to take part exclusively in conferences,
conventions, exhibitions or fairs to be held in Mexico provided that said
foreign tourists are able to show the hotel documentation supporting
their migratory status in terms of the General Population Law (LGP),
and that all services are paid for via a credit card issued abroad and
the contracting of hotel and similar services is made by event
organizers", does not mean that execution of the taxable event is
arbitrary, uncertain or is subject to the will of a third party outside
the tax relationship. What really constitutes the object of IVA, in order
to apply the 0% rate, is that hotel companies render export services
in the terms defined by the law, not the fact that foreigners meet, or
fail to meet, these requirements.
On the other hand, the Chamber reiterated the criterion it
maintained in amparos under review 1442/2004, 214/2005, 470/2005
and 302/2005, in the sense that the amendment to Article 29, section
VII of LIVA, carried out in 2002 and effective as of January 1, 2004,
had a specific purpose other than tax purposes. In the case, the Chamber
decided that the legislator had an objective and reasonable justification
to establish the 0% rate for conferences, given that the opinion of the
Chamber of Deputies shows that the amendment to the challenged
article sought to encourage business tourism in the country. Therefore,
it is clear that the amendment went beyond tax purposes, so that at no
time the right to tax fairness was infringed.34
In addition, the First Chamber found that the norm is not unfair,
pointing out that application of the 0% rate to IVA to the rendering
of hotel and related services to foreign tourists coming in the country
with the purpose of taking part in conventions, exhibitions, or fairs
to, said foreign tourists are compelled to meet certain requirements,
33
34
Ruling 1a. XIX/2005, ib., March 2005, p. 223.
Ruling 1a./J. 81/2005, ib., v. XXII, July 2005, p. 415.
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which are not additional or contingent to the rendering of hotel
and similar services to foreign tourists coming in the country
exclusively to participate in conferences, conventions, etc., but
integrate the normative assumption provided for in Article 29,
section VII of LIVA.
77
A tax rebate is in order whenever a request is
grounded on the response to a tax inquiry that
determines the inadmissibility of the regulation
requiring the tax payment because the
unconstitutionality of the tax is in question,
provided that the payments are made
subsequent to the inquire
Resolution to Opposite Rulings 52/2004-SS. Between the Fifth and
Seventh Administrative Collegiate Courts of the First Circuit.
December 1, 2004. Opinion delivered by Justice Margarita Beatriz
Luna Ramos.
The resolution of opposing rulings 52/2004, resolved by the Second
Chamber of the Supreme Court, originated as of the issue of two
orders by the Federal Tax and Administrative Court. In these orders,
the Federal Tax and Administrative Court declared the nullity of the
answers to two inquires for the tax authorities to nullify its resolutions
and issue new ones accepting the petition of taxpayers, in the sense
that they were not subject to Article 78-A of the Income Tax Law
(LISR), since it had been declared unconstitutional in a ruling by the
Supreme Court.
In this sense, the criteria of the Fifth and seventh Administrative
Collegiate Courts of the First Circuit, were conflicting in resolving tax
reviews 186/2002 y 3807/2003. The Seventh Administrative Collegiate
Court of the Firts Circuit maintained that the answer to a tax inquiry
issued in compliance with an order by the Federal Tax and
Administrative Court determining inadmissibility in the real, specific
situation of Article 78-A of LISR as a result of its being declared
unconstitutional by a ruling of the Court, does not imply an obligation
for the tax authorities to repay the amounts paid to them in observance
of said norm, for the payment of the undue amount is not updated in
terms of Article 22 of the Federal Tax Code. For that to be so, it would
have been necessary for the party requesting repayment to have
79
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challenged the norm through an indirect amparo trial and for the award
to have been favorable to it, in terms of Articles 103 and 107 of the
Federal Constitution. It was added that considering otherwise would
be equivalent to granting effects of restitution to the nullity awards
—which would act as amparo executory writs.
For its part, the Fifth Administrative Collegiate Court of the First
Circuit found that tax refunds are in order when the Federal Tax and
Administrative Court declares the nullity of the answer to a tax inquiry
where determination is made that a norm already declared unconstitutional
by the Supreme Court is not applicable to the person making the
inquiry. It is not necessary to resort to the Judiciary for such purposes,
given that the effects of the nullity orders are not only conducive to
annulling the challenged act, but also to set forth the rights of claimant,
ordering a refund by the authority. In other words, if the norm compelling
payment is not applicable to the person making a tax inquiry with respect
to the real and specific situation that motivates such inquiry, tax refunds
are admissible, on the grounds that existence of payment of the undue
amount should be considered in terms of Article 22 of the Federal Tax
Code.
In resolving the controversy, the Court found that, whenever the
party requests repayment of taxes based on the answer issued by
the tax authority to an inquiry where non-application of the norm
provided for in the related tax is determined as a result of being declared
unconstitutional by a ruling of the Supreme Court —a response issued in
compliance with an order issued in the nullity trial by the Federal Tax
and Administrative Court— the aforementioned tax repayment shall
proceed only with respect to the payments made after submission
of the inquiry, by virtue of the fact that this is the moment in which the
taxpayer obtains the benefit of application of the ruling. This is not
the case for prior payments made, or payments made in compliance
with a provision of obligatory observance, for current and full legal
effectiveness is taken to exist at the moment of payment given that the
challenge was made through indirect amparo and because —in terms
of Article 22 of the Federal Tax Code— the factual or law error
conditioning the refund is not retroactive.35
35
Ruling 2a./J. 6/2005, ib., v. XXI, February 2005, p. 314.
T h e C h a m b e r s o f t h e Fe d e r a l Ta x a n d
Administrative Court are empowered to analyze
by operation of law not only the lack of power
of the authority issuing the contested resolution
but also that of the party responsible for ordering
or processing the case leading to such resolution
Resolution to Opposite Rulings 184/2004-SS. Between the Third
and Second Administrative Collegiate Courts of the Third Circuit.
December 1, 2004. Opinion delivered by Justice Genaro David Góngora
Pimentel.
The Third and Second Administrative Collegiate Courts of the Third
Circuit, issued contradictory opinions with respect to the power of the
Chambers of the Federal Tax and Administrative Court, as provided
for in the second last paragraph of Article 238 of the Federal Tax Code.
The Third Administrative Collegiate Court of the Third Circuit found
that the above precept only empowers the Federal Tax and Administrative
Court to officiously analyze the lack of competence of the authority
that issued the final resolution of a case. The Second Administrative
Collegiate Court of the Third Circuit however, determined that the
Chambers of the Federal Tax and Administrative Court are compelled
to analyze, by operation of law, not only the lack of competence of the
authority that issued the final resolution on the procedure, but also
the lack of competence of the authority that issued the order, as it is
not possible to maintain the legality of a settlement resolution of a tax
loan when the authority that ordered the procedure had no legal authority
to do so.
So, the point of contradiction to be resolved by the Second
Chamber of the Supreme Court lay in determining whether, in
accordance with Article 238, second to last paragraph of the Federal
Tax Code, the Chambers of the Federal Tax and Administrative Court
may officiously and exclusively analyze the lack of competence of
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the authority that issued the resolution challenged through a
contentious-administrative trial, or that of the authority that ordered
or processed the proceeding which gave rise to said resolution.
The Chamber deemed that, from an analysis of Article 238 of the
Federal Tax Code —specifically sections I, II, III and IV— it becomes
evident that the Chambers of the Federal Tax and Administrative Court
can declare the nullity of the administrative resolution challenged in
trial, by meeting any of the following assumptions: a) upon
determination of the lack of competence of the authority that issued
or processed same or ordered the proceeding from which said resolution
derived; b) whenever there is a failure to meet the formal requirements
contemplated in the laws, and that affects the defenses of the party as
well as the meaning of the challenged resolution, including the absence
of grounds; c) whenever legal defects affecting defenses of the party
as well as the sense of the challenged resolution exist; and d) when
the facts that motivated it had not been performed, were different or
had been incorrectly construed, or when they had been issued in
contravention of the provisions applied, or the correct provisions had
not been applied.
The Second Chamber indicated that, in dealing with administrative
resolutions challenged in a trial before the Federal Tax and
Administrative Court, it is valid to order its nullity if the cause provided
for in section I of Article 238 of the Federal Tax Code, relating to "the
lack of competence of the officer that had ordered, issued or processed
the proceeding which gave rise to said resolution" is present. The
Second Chamber added that in relation the nullity cause pertaining
to the lack of power of the authority, in the second to last paragraph
of the Article 238 above, it is established that "The Federal Tax and
Administrative Court may claim —by operation of law— since it
pertains to the public order —the lack of competence of the authority
to issue the challenged resolution and the total absence of grounds
for the same".
In order to establish the correct interpretation of this normative
provision, the Court deemed it advisable to consider its full contents,
and inferred that, from the interpretation of the prescriptions in the
above article, it was evident that the powers granted to the Chambers
of the Federal Tax and Administrative Court are intended for officious
analysis of the lack of power both of the authority that issued the
challenged resolution in trial, as well as the authority that ordered or
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83
processed the proceeding which gave rise to the former. Indeed, besides
the fact that the power exercised by authorities is a matter of public
order, a strict and literal interpretation, maintaining that the Chambers
are only empowered to analyze by operation of law the lack of
competence of the issuing authority of the challenged resolution, would
not be feasible. Should the officer that orders or processes the
proceeding that brings about the definitive resolution in a trial lack
appropriate legal authority, such resolution would be affected from
the root and deemed illegal.
Thus the Court decided that, interpreting the legal text in question
leaves no doubt with respect to its contents and scope. Even though
the second to last paragraph refers only to the lack of competence
of the authority that issued the challenged resolution, that does not
imply nor can it be inferred that the Chambers of the Federal Tax and
Administrative Court are exclusively empowered to analyze, by
operation of law, the lack of power of the authority that issued the
challenged resolution —excluding any other— in the understanding
that this would result in the survival of resolutions nullified due to a
legal defect referring to the lack of power of the authority that issued
the proceeding which gave rise to the same.
The Court concluded that there is no room for an interpretation
other than that of the second to last paragraph of the above Article
238, if consideration is that the interpretation made by the Chamber
in the terms above matches the intention of the legislator to annul
every administrative resolution affected by a defect of illegality. This
results in the interpretation related to Article 238 of the Federal Tax
Code, whose section I establishes, as a cause for illegality, the lack of
authority of the official that ordered, issued, or processed the
proceeding that gave rise to the challenged resolution. Therefore, it
should be understood that the Chambers are empowered to officiously
analyze the lack of any of these authorities. This does not contravene
the literal text of the second to last paragraph of Article 238, for it is
evident from the normative context where it is inscribed and the
evolution of the applicable legislation (Federal Tax Code), that it has
been the intention of the legislator to seek the nullification of every
resolution or administrative act affected by illegality.
Finally, the Second Chamber noted the fact that Article 238, in
the second to last paragraph, undoubtedly includes not only the lack
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of power of the authority that issued the challenged act or resolution,
but also that of the authority that processed the related proceeding.
Therefore, even if it had not been exposed by claimant in the concepts
of annulment of the tax claim, the Chambers of the Federal Tax and
Administrative Court may officiously analyze this aspect. 36
36
Provisional alimony may not be canceled while
a decisions is made on the claim filed against
the order that decrees the same (legislation
of the State of Veracruz)
and Second Civil Collegiate Courts of the Seventh Circuit. December 1,
2004. Opinion delivered by Justice Olga Sánchez Cordero de García
Villegas.
The point of contradiction was limited to determining whether
under Article 210 of the Code of Civil Procedures for Veracruz, the
order setting provisional alimony by a judge upon beginning alimony
dispute proceedings may or may not be cancelled. The First Chamber
of the Supreme Court resolved the issue.
The Court noted that the Article 210 provides that, for food claims,
the judge may, in the order that marks the initiation of the claim, and
upon request and based on the circumstances, set a provisional
alimony and order its payment upon justification provided by alimony
beneficiaries. Justification is shown through appropriate certified
copies of records of civil status, marital relationship, or relation with
alimony debtor, regardless of the final resolution in the case. The
First Chamber made it clear that this indicated that alimony is
provided for in two different procedural stages-one provisional and
the other final. The former is determined without the presence of the
debtor at the hearing and based only on the information available
at the time the claim is filed, while the latter occurs upon final order by
the judge, in virtue of the evidence provided by the parties at the trial.
The First Chamber determined that the preliminary measure
referred to in the above Article has a special purpose for it aimed at
meeting immediate needs of defenseless people, which are a priority of
public order, and urgent by nature. The setting of provisional alimony
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and the resulting seizure of the alimony debtor’s property are transitory or
temporary by nature, for these measures remain effective or continue
until the order resolving the dispute in question is issued. It cannot be
deemed arbitrary or lacking grounds, for the above article implies that
the resolution where payment of the above provisional alimony is
determined may only be issued upon production of due evidence of
by the requesting party, submitting appropriate civil registry records to
prove the alimony obligation.
Likewise, the Chamber found that the provisional seizure of
the alimony debtor’s estate is justified if we recall that the need to
receive food, by its very nature, holds a special place in family law.
Therefore, appropriate provisions allowing for prompt satisfaction
are required. It would be senseless to condition the concession of
alimony to a prior proceeding where the debtor could file appeals
whose routinely lengthy processing would delay the attention to
such a need, for it implies the subsistence of an individual.
According to the Court, suspension is only admissible if the right
of claiman to receive food is resolved by a final decision. While it is
true that the legislator contemplated a means of defense known as a
claim, it is not on the basis of this means that the provisional alimony
may be rendered invalid or cancelled. Rather, the initial amount can
be reduced, for the time during which the claim is processed.
The First Chamber found that, because the purpose of alimony
lies in providing the beneficiary with all the elements for survival, the
request will never be granted to cancel or nullify the provisional measure
ordered by the judge. Given the briefness of the legal term for its
processing and resolution, the judge will hardly have sufficient evidence
to decide on the right in favor of alimony beneficiary. The latter could
demonstrate his or her right to receive food during the trial thereby
discrediting the request of cancellation or discontinuation. Thus a decision
of that nature would be equivalent to depriving the latter of indispensable
means of survival.37
37
Ruling 1a./J. 9/2005, ib., March 2005, p. 153.
JANUARY
2005
Simple theft between spouses is materialized
even if applied to community proper ty.
(Chiapas and Guerrero legislation)
Resolution to Opposite Rulings 46/2002-PS. Between the Second
Collegiate Court of the Twentieth Circuit and the First Collegiate Court
of the Twenty First Circuit. January 19, 2005. Opinion delivered by
Justice Olga Sánchez Cordero de García Villegas.
Registration number: 29
Upon examination of the rulings issued by the Second Collegiate Court
of the Twentieth Circuit and the First Collegiate Court of the Twenty
First Circuit, the First Chamber of the Supreme Court observed that
both courts analyzed cases of theft between spouses with respect to
personal property belonging to the marital estate. The trial records
showed no dissolution of marriage at the time this conduct was
recorded, nor were there any marriage capitulations establishing that
such property was independent to the marriage regime. The courts
noted that with regards to regular theft, such conduct is sanctioned
upon the request of the claimant (Articles 177 and 186 of the Criminal
Code for the State of Chiapas; 163 and 185 of the Criminal Code for
the State of Guerrero). Furthermore, the Second Collegiate Court of the
Twentieth Circuit asserted that the offense of theft is not materialized
when the personal property subject to possession belongs to the marital
estate, for, having been acquired while such marital bond is effective,
such property belongs to both spouses and therefore the offense of
theft does not materialize. The First Collegiate Court of the Twenty
First Circuit declared that theft is indeed materialized even in the
case of property belonging to the marital estate, for taking undue
possession of third party property can take place with respect to
the joint property of a spouse.
87
88
RELEVANT DECISIONS
The Supreme Court was called upon to resolve the point of
contradiction to determine whether theft between spouses is materialized
when the property subject to possession pertains to the marital
estate, without dissolution of marriage at the time of the alleged offense,
and without a marriage contract being executed specifying that such
property was outside the regime of marital property.
In its decision, 38 the First Chamber indicated that the crime of
simple theft contemplated in the Criminal Codes for Guerrero and
Chiapas does not mention the quality or capacity of the offender,
nor does it establish excluding elements in favor of spouses. Thus,
from the normative point of view, nothing prevents materialization
of such offense between spouses, especially considering that the
intention of the legislator to include them as offenders is clear and
express, for Articles 185 and 186 of the above ordinances respectively
indicate the need for the offended spouse to file a claim, regardless
of the patrimonial regime of the marriage. The governing principle is
that whenever the law makes no distinction, the interpreter of the
law should not either. Moreover, for purposes of penal law, the exact
application of the law prevails.
Even under the community property system, the Chamber added,
except if agreements have been made in the sense that specific property
will be excluded from the such system while the marriage is in effects,
the typical elements of simple theft may be incorporated by virtue
of the fact that community property is for the realization of common
goals, which are those of a marriage, and by virtue of the fact that
ownership and administration of such property relies on both
spouses in equal parts and by mutual agreement, without those
attributes corresponding to any one in particular.
Therefore, if one of the spouses, without consent from the other,
takes possession of the community property for purposes other than
those contemplated, taking it from the sphere of ownership of his or
her spouse, this type of offense is materialized in virtue of the following:
a)
b)
38
Appropriation of personal property: whenever one of the spouses
removes the property from the sphere of ownership of the other
and uses it in exclusion of the other spouse;
Third party: Ownership of property does not fully belong
to offender and is thus alien to him or her as relates to the part
Tesis 1a./J. 29/2005, ib., v. XXII, July 2005, p. 316.
c)
d)
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belonging to the other spouse, being unduly disposed of to the
detriment of the latter’s estate;
Without the tacit or express consent from the individual with the
legal status to grant it: spouse, and
Without right: whenever there is no legal provision or ruling a
competent authority authorizing the party to use the whole of
the property, or due to a lack of consent from the other spouse.
The Chamber found that this occurs regardless of whether the
elements of simple or generic theft are met through the factual
convictional and evidence elements. This fully affirms the fact that
the conduct by offender is a criminal behavior, in accordance with the
above.
89
Suspect has legal interest to file an indirect
amparo trial against refusal of the Prosecuting
Agency to pronounce execution or discontinuance
of the criminal action
Criminal Collegiate Court of the Sixth Circuit and the Second Criminal
Collegiate Court of the Third Circuit. January 19, 2005. Opinion
The opposing rulings dealt with whether a suspect may file an
indirect amparo trial against refusal of the prosecuting agency to
pronounce for or against discontinuance of the criminal action.
Although there was similarity between the facts, opposing rulings
were filed by the two courts.
The First Chamber of the Supreme Cour t explained that
paragraph one of constitutional Article 1 sets forth that in the Mexican
legal order all individuals will enjoy the individual guarantees
granted by the Constitution, and that these may only be restricted
or suspended based on the conditions stipulated in the former. The
article above contains a principle of equality, which can be translated
into the fact that any person residing in the national territory is the
holder of the individual guarantees, regardless of their particular
conditions. In addition, constitutional Article 21 governs the nature
and duties of the prosecuting agency, an administrative body
entrusted with the investigation and prosecution of offenses, which
are carried out during the preliminary investigation. Due to the
execution of these duties, the prosecuting agency is the body with
the power to continue or discontinue the criminal trial against the
suspect of an offense.
91
92
RELEVANT DECISIONS
The Court noted that paragraph four of constitutional Article 21
was amended in December 1994. The amendments established that
the resolutions of the prosecuting agency on non-execution and
discontinuance of the criminal trial may be challenged through the
courts via the terms to be set forth by the law. In such a sense, a joint
interpretation of constitutional Articles 1 and 21 concludes that the
power to challenge the resolutions of the prosecuting agency on
the non-execution of the criminal suit is an individual right granted
by the Constitution enabling courts to challenge such resolutions.
After examination of the introductory remarks on the legislation
by the President, as well as the opinions of the Chamber of Deputies
and Senators, that gave rise to the amendment of paragraph four of
constitutional Article 21, the Court founf that the intent of the reform
was to subject to a legality control all resolutions on the non-execution
or discontinuance of a criminal trial by the prosecuting agency. This
established an individual right to challenge said resolutions in the courts
for the victims of offenses, as well as by the accused parties, for it is a
right secured by the Constitution. In this sense, the Court, concluded39
in an earlier case that the legislative history reveals the origin of
the individual right of citizens to challenge the resolutions of the
prosecuting agency dealing with non-execution of the criminal process.
The Chamber indicated that from the introductory remarks by
the Presidential in the bill containing reforms to constitutional Article
21 and the construction made by the Supreme Court, it is inferred
that said precept contains the subjective right to challenge through the
courts the resolutions by the prosecuting agency on the discontinuance
of the criminal action. It was also clean that the reform was passed to
fight corruption and impunity in the duties of the prosecuting agency.
Now, in virtue of the right contained in Article 21, paragraph
four of the Federal Constitution, the Court manifested that, due to the
lack of an ordinary means to challenge resolutions under the terms of
the existing criminal legislation, regarding the prosecuting agency on
non-execution of the criminal action, then, indirect amparo trial was
admissible. Likewise —added Court—, non-execution of the criminal
action or its unjustified discontinuance affects the legal interests of
victim, claimant, plaintiff and its family, as well as those of the party
interested in prosecuting the offense, for, in the first case, they are
39
Ruling P./J. 128/2000, ib., v. XII, December 2000, p. 5.
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93
unable to obtain repair of the damage caused by the offense. Hence,
those individuals have the legal capacity to file an amparo against the
resolutions of the prosecuting agency infringing the right to legal safety
established in constitutional Article 21.
Nonetheless, the Chamber specified that admissibility of an indirect
amparo was not only with respect to the resolutions of the prosecuting
agency where non-execution of the criminal action is determined,
but also against its refusal to issue an opinion on the results of the
preliminary investigation. This is because such omission generates
uncertainty for the parties interested in the prosecution of the offense,
for they do not know whether the facts denounced constitute a criminal
conduct and whether the suspect is responsible or not for said conduct.
This violates the investigation duties entrusted by the Federal
Constitution to the prosecuting agency, as well as the obligation to
give due attention to all made by citizens. 40
In addition, the First Chamber asserted that the complaints suspect
also has an interest in challenging the refusal by the prosecuting agency
to issue an opinion on the non-execution of the criminal trial, for said
omission generates, in turn, a state of uncertainty on the legal situation
with respect to the results of the preliminary investigation. Indeed, the
preliminary investigation is the stage of the criminal proceedings where
the prosecuting agency, as an investigative authority, performs all
necessary procedures to reach a determination on whether non-exercise
of the criminal trial is admissible (i.e., carries out all investigations
required to evidence the corpus delicti and the potential responsibility
of suspect, or otherwise, that there are not sufficient elements to
establish that the facts denounced constitute an offense).
Thus, the Chamber indicated that, if the prosecuting agency withholds
the results of its investigative activity, by refraining from issuing an
opinion on the execution or non-execution of the criminal suit, both
the aggrieved party and suspect in the preliminary investigation fall
defenseless. A lack of decision or non-execution of the criminal trial,
and the filing of the investigation, damages the legal sphere of suspect,
for, as long as there is no opinion delivered by the administrative
authority, the suspect’s legal status remains unresolved. Such refusal
by the prosecuting agency is even more serious than the resolution
determining the non-execution or withdrawal from the criminal
40
Ruling 1a./J. 16/2001, ib., v. XIII, May 2001, p. 11.
94
RELEVANT DECISIONS
action, for the suspect does not know whether the conducts she or he
is accused of fall into a criminal category as described in the law, or
whether there are sufficient elements evidencing corpus delicti or his
or her responsibility for the criminal acts.
The Court specified that, in accordance with Articles 107, section
I of the Federal Constitution and Article 4 of the Amparo Law, a case
regarding the violation of a constitutional right may only be filed by
the party whose legal sphere is directly damaged by a law, treaty,
regulation or act of a person of authority. In this sense, standing
is understood as the affectation of the legal sphere of a person for
violation of a right protected by the law, in virtue of the act of
authority. In these case, the holder of a legally protected right may
file for trial. In conclusion, it is clear that a suspect has legal interest
to file an indirect amparo trial in the case, of refusal by the prosecuting
agency to issue an opinion on the execution or discontinuance of the
criminal trial during the preliminary investigation, since this action
affects his or her legal sphere. 41
41
Ruling 1a./J. 17/2005, ib., v. XXI, May 2005, p. 15.
For conflicts related to the possession of
communal lots, the Agrarian Court shall look
into its generating cause, if parties bear no
agrarian title supporting the rights to the lands
in dispute
Resolution to Opposite Rulings 131/2003-SS. Between those
maintained by the First Collegiate Court of the Eighteenth Circuit
and the Third Collegiate Court of the Sixth Circuit, against the
Second Collegiate Court of the Eighteenth Circuit. January 21, 2005.
Opinion delivered by Justice Margarita Beatriz Luna Ramos.
Non-existence of contradiction between the rulings issued by the
Third Collegiate Court of the Sixth Circuit and the First and Second
Collegiate Courts of the Eighteenth Circuit was determined in this
matter. Nonetheless, the Second Chamber found discrepancy between
the ruling issued by the First Collegiate Court of the Eighteenth Circuit
and the Second Collegiate Court of the Eighteenth Circuit. The
position of the First Collegiate Court of the Eighteenth Circuit
consisted of holding that, if in a conflict on possession and
enjoyment of a section of agrarian land (ejido), the parties lack
acknowledged agrarian rights, the decision shall be in favor of the
party possessing the property in question. This does not change
the fact that regarding the very legitimacy of said ownership and/or
that of the dispossessed party, both have a legal interest in disputing
such possession and ownership by the other party. In turn, the
position of the Second Collegiate Court of the Eighteenth Circuit is
that, in dealing with conflicts of possession and enjoyment of a section
of agrarian land (communal plot) where the parties lack acknowledged
agrarian rights, the issue of possession shall be attended to.
Thus the Court had to determine whether, in dealing with a conflict
regarding possession and enjoyment of an ejido (communal) plot, where
the parties lack acknowledged agrarian rights, the decision should favor,
95
96
RELEVANT DECISIONS
the party currently enjoying the rights of such agrarian land, or whether,
regardless, the issue of possession by the parties in dispute should be
attended to.
The Court ruled that, in accordance with Article 27 of the Mexican
political constitution protection of the rights to communal lots (including
possession) is subject to the fulfillment of all requirements to be a
communal land holder. Hence, in dealing with conflicts regarding
possession and enjoyment of ejido/communal land, where the parties
fail to prove formal ownership of the appropriate rights of use and
enjoyment (formal assignment by the supreme body of the city hall or
duly legalized transfer of rights), the Agrarian Court shall examine the
issue of possession, i.e., the existence of sufficient title to grant rights
to possess —which may only be proven by individuals that are fit to
hold a title as communal land holders. Consequently, the decisions by
the Court on the stronger right to possession in exclusive observance
of the factual enjoyment of ejido/communal plots in a given time is
not sufficient. Instead, resorting to analysis of the stronger right to
possession in attendance to the issue of possession is required (in
observance of Articles 14, paragraph two and 17, paragraph one
of the Federal Constitution) Thus, unjustified violation of the right to
possession of others is thereby prevented, and, at the same time, the
rule that no person may apply vigilante justice nor exert violence to
claim a right is met.42
42
Ruling 2a./J. 28/2005, ib., v. XXI, March 2005, p. 255.
No appeal is inapplicable against executory
writs issued in an indirect amparo trial,
when appellants manifest themselves as
non-summoned, aggrieved third parties
Direct amparo under review 1340/2004. January 25, 2005. Opinion
delivered by Justice Juan Díaz Romero.
Upon beginning examination of the filed recourse, the Court, analyzed
firstly, the admissibility of the review recourse and concluded that it
should not be allowed because it proved evidently inapplicable, for
it was filed by people claiming to be aggrieved third parties in an
amparo trial that had already concluded. The Court, pointed out that
recourses belong to the challenge stage of proceedings. If such
proceedings are in the form of a trial, it is evident that we are dealing
with a public institution, governed and limited by legal norms.
Therefore, the Supreme Court referred to the precepts of the Amparo
Law governing questions pertaining to the review recourse —82 through
86 and 88— and, based on these legal provisions determined that,
against the decision issued by a District Judge in a constitutional hearing,
the review recourse applies if: a) the problem of law constitutionality
remains; b) the matter refers to laws or acts by the federal authority that
infringe or limit the sovereignty of the States or the sphere of competence
of the Federal District; or, c) the case deals with laws or acts by the
State or Federal District authorities invading the sphere of power of
the federal authority.
In light of the above, the Supreme Court pointed out that for the
case under study, the competent authorities inferred review against
97
98
RELEVANT DECISIONS
the order issued by the District Judge granting amparo to claimants.
It further emphasized an indirect amparo judgment may only be tried
twice. The first time necessarily opens with the start of a guaranty trial
and concludes with the pronouncement of the constitutional judgment.
The second one involves the possibility that the original judgment is
appealed. It is precisely the filing of this recourse which opens the
second stage of trial, which will conclude with the pronouncement of
a sentence.
As for a challenged judgment, the Court pointed out, there
are two different avenues: The first one is that procedure-wise, it
supplements, and sometimes replaces, the original judgment, and
the second is that it produces the principle of preclusion. With respect
to this principle, the Court, observed that it impedes going back to
already-completed procedural stages. Thus, when the review recourse
has been initiated by any of the parties, the principle of res judicata
(which is the main expression for preclusion) applies, wich prevents
the filing of a constitutional litigation which had been finally judged
and settled.
Therefore, the Supreme Court specified that, in the case at hand,
preclusion of the challenge stage for a two-stage amparo trial controlled
any possibility to claim the review recourse was inhibited. It further
added that upon exhaustion of this means of challenge, the decision
taken in the dispute is final and impedes filing any other challenge.
In this respect, the Court, pointed out that, in virtue of the principles
of preclusion and res judicata, an order issued by this authority acquires
general efficacy. Therefore, the fact that executory writ is valid —at
first— for the parties, does not imply that its effects are only limited to
them. It considered that it is applicable to everyone, for the decision
contains the decision of a judge regarding specific cases under his or
her authority.
In these terms, it was pronounced that the order bearing authority
of res judicata, has no subjective limits when dealing with third parties,
but erga omnes efficacy.
Lastly, the Supreme Court emphasized that both the Federal
Constitution and the amparo law set forth that orders by Collegiate
Circuit Courts —for cases of review— admit no appeal, and that this
is supplemented by the Federal Code of Civil Procedures (CFPC), which
establishes that non-appelable decisions result in an executory writ.
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Based on the above considerations, and taking into account that
for the case, the appeal had been decided by the courts (which
essentially confirmed granting of amparo), the Court decided that the
appeal was inapplicable. 43
43
Ruling P. XI/2005, ib., April 2005, p. 5.
99
FEBRUARY
2005
For the admission of the order related to the loss
of parental rights and duties due to repeated
failure to meet the alimony obligation,
establishing that the health, safety or morality
of the offspring and the prior establishment of
alimony is not required
Miscellaneous 16/2004-PS. Petition of modification of ruling number
1a./J. 62/2003, derived from Resolution to Opposite Rulings 137/
2002-PS, Between the Ninth Collegiate Civil Court of the First Circuit
and the Eleventh and Thirteenth Civil Collegiate Courts of the same
circuit. Petitioner: Third Collegiate Civil Court of the First Circuit.
February 2, 2005. Opinion delivered by Justice Juan N. Silva Meza.
In October 2004, the presiding judge of the Third Collegiate Civil
Court of the First Circuit asking the Court to review ruling 1a./J.
62/2003, issued by the First Chamber of the Supreme Court when
issuing resolution to opposing rulings 137/2002-PS. The petition
was turned over to the First Chamber, which declared that all the
admissibility requirements had been met. It further deemed all
arguments made by the Judges of the Third Collegiate Civil Court
of the First Circuit as correctly grounded to modify the above rulings,
which indicated:
PARENTAL RIGHTS AND DUTIES. FOR THE ADMISSION OF THE
ORDER RELATED TO THE LOSS OF PARENTAL RIGHTS AND
DUTIES DUE TO REPEATED FAILURE TO MEET THE ALIMONY
OBLIGATION, PROVING THAT THE HEALTH, SAFETY OR
MORALITY OF THE OFFSPRING AND THE PRIOR ESTABLISHMENT
OF ALIMONY, OR THE EXISTENCE OF SUMMONS IS NOT
REQUIRED (LEGISL ATION OF THE FEDERAL DISTRICT).
Amendment to Article 444 of the Civil Code for the Federal District,
issued in the Official Gazette of that entity on May 25, 2000, eliminated
as the cause for loss of parental rights and duties the fact that, due to
abandonment of parental rights, the health, safety or morality of the
offspring may be compromised in order to include the rule related to
101
102
RELEVANT DECISIONS
repeated noncompliance with the alimony obligation. Now, if
considering, on the one hand, the general principle of law that where
the law makes no distinction, neither does the judge, and, on the
other, that the actual wording of section IV, Article 444 does not
demand proving that abandonment of parental duties —specifically,
the alimony obligation— compromises the health, safety or morality
of the offspring, our finding is that, for admissibility of the declaration of
the loss of parental rights and duties due to repeated failure to comply
with the alimony obligation, proving such circumstances is not
required, for this cause is restated when alimony debtor stops
subsidizing without a justification the alimentary needs at the
frequency set forth by judge, and this conduct is repeated more than
once —which proves that debtor has repeatedly stopped complying
with such duty. For this, no summons is necessary in virtue of the
daily need of food by beneficiary. 44
The reasons exposed to justify amendment were as follows:
1.
2.
3.
44
That the text of the ruling in question only refers generically to
the facts that repeated non-compliance with the obligation of
providing food is restated when alimony debtor stops subsidizing
—with no good reason— the alimentary needs according at
frequency set forth by the judge, without the need of a summons
in view of the daily urgency of food, but it does not establish whether
said legal determination shall be executed through a provisional
measure or judgment.
That in the executory writ originating the ruling in question, it was
considered that the obligation to provide food is restated day to
day. Therefore, it must be met on a daily, uninterrupted, timely
basis, and determined according to the capacity of debtor to meet
the requirement as debtor is paid, set through a covenant to or
judgment on alimony. Nonetheless, the ruling exclusively reflects
the assumption of a judgment.
That the executory writ warns there exists two assumptions that
may serve to determine whether obligor repeatedly violated the
alimony obligation: a) the first, in attendance to the manner
and time debtor obtains its payment, and b) the second, when a
covenant or judgment allocates a regular payment in favor of
alimony beneficiary. However, the ruling text is restricted to the
assumption that there exists a frequency set forth by a judge,
without clarification of the nature of such resolution. Neither does
it expressly consider the covenant, where such frequency may
also be set forth, and even that such frequency may be based on
the manner and time debtor obtains its income. The alimony
obligation does not depend on the existence of a covenant
or Court resolution determining the frequency for compliance,
Ruling 1a./J. 62/2003, ib., v. XIX,March 2004, p. 196.
4.
5.
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but that verification is made on the relationship, evidence is
submitted that alimony debtor has the material capacity to
fulfill such obligation, and that there is no unsurpassable
hindrance preventing debtor from providing their beneficiaries
with all means necessary for their survival.
That for all these assumptions, section IV, Article 444 of CCDF
—which governs repeated violation— applies.
That restatement of the loss of parental rights and duties due to
repeated violation shall not be limited to one single circumstance,
for the executory writ also sets forth, as a finding, that the obligation
to provide food shall be fulfilled without the need of any requirements
whatsoever.
The First Chamber maintained that, if the obligation to provide
food exist every day, due to the need of the beneficiary such need
must be met continuously and uninterruptedly, without the need for
summons. The alimony payment is determined according to the means
of the debtor, and when he or she obtains his or her income (of course,
it is also determined in accordance with the need of the party entitled
to it). In addition, if it was established that in the causes for loss of
parental rights and duties "the objective of preserving the physical
and moral integrity of the offspring is implied", it must be found that,
in view that the legal obligation to provide food is a continuons
duty, violation to the norm regulating said duty —in the case of
offspring, Article 303 of CCDF— occurs as long as the debtor continues
not to pay.
A restatement of the rule provided for in section IV, Article 444 of
CCDF45 is that in the circumstance that, to it the obligor repeatedly
stops paying the alimony ordered by the civil or family judge
provisionally or finally, through a covenant, judgment, does not establish
such conditions; provided, however, it does not refer to the repeated
violation of the obligation of payment of alimony, but to the alimony
obligation inherent to the parental "rights and duties", based on the
need of a person that is not able alone to pay for all expenses necessary
for survival, as well as the capacity of the other person to meet that
need, given a legal link binding both.
45
Prior to its amendment on June 9, 2004, published in Gaceta Oficial del Distrito
Federal, these regulations indicated the following:
Article 444. Parental rights and duties are lost by judicial oder:
...
IV. Reiterated failure to comply with Alimony obligation inherent to
Parental rights and duties.
103
104
RELEVANT DECISIONS
Thus, the First Chamber determined that, once these circumstances
have been proven in a trial where loss of parental rights and duties is
claimed due to repeated violation of the inherent alimony obligation,
or payment of alimony that, provisionally or finally, through a covenant,
judgment or any other binding Court resolution, had been decreed by
the Court, the rule in section IV, Article 444 of CCDF, 46 of repeated
failure to payment shall be deemed present, without neglecting that,
in dealing with disputes where the loss of parental rights and duties is
sought due to abandonment of the alimentary obligation, judges —at
their prudent judgment— shall weigh whether, on proving noncompliance
with that duty, its effects may or may not —in view of the particular
circumstances— compromise the health, safety or morality of the
offspring.
The reasons exposed determined that the First Chamber will
amend ruling 1a./J. 62/2003, as follows:
PARENTAL RIGHTS AND DUTIES. FOR THE ADMISSION OF THE
ORDER RELATED TO ITS LOSS DUE TO REPEATED FAILURE TO
MEET THE ALIMONY OBLIGATION, PROVING THAT THE HEALTH,
SAFETY OR MORALITY OF THE OFFSPRING IS JEOPARDIZED AND
THE PRIOR ESTABLISHMENT OF ALIMONY IS NOT REQUIRED,
(LEGISLATION OF THE FEDERAL DISTRICT) (MODIFICATION OF
RULING 1ª/J 62/2003). Amendment to Article 444 of the Civil Code
for the Federal District, issued in the Official Gazette of that entity on
May 25, 2000, eliminated as the cause for loss of parental rights and
duties the fact that, due to abandonment of parental rights, the health,
safety or morality of the offspring may be compromised in order to
include the rule related to repeated noncompliance with the alimony
obligation. Now, if considering, on the one hand, the general principle
of law where the law makes no distinction, neither does the judge and, on
the other, that section IV of Article 444 does not require proving that the
abandonment of parental duties —specifically, the obligation to provide
food— compromises the health, safety or morality of the offspring, finding
is that for admission of declaration of loss of parental rights and duties
due for repeated noncompliance with the alimony obligation, proving
such circumstances is not required, for this cause is restated when
46
The First Chamber did not ignore the reform —indicated in the above note— of
section IV of the article in question, which now reads:
Article 444. Parental rights and duties are lost by judicial order:
...
IV. Failure to comply with Alimony obligation for more than 90 days
without justifiable cause.
However, this would not be an impediment to resolving the matter, which would be
applicable for all cases to be governed in comformity with norm prior to such reform.
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alimony debtor stops subsidizing, for no good reason, all alimentary
needs. It is also not necessary that a judge have ordered alimony payment
and that alimony debtor repeatedly stops paying the payment that had
been decreed provisionally or finally, through covenant, judgment or
any binding Court resolution, for the above law does not establish said
condition, as it does not refer to repeated non-compliance of the alimony
obligation, but to the "alimony obligation inherent to parental rights
and duties", which is based on the state of need of a person who cannot
pay for all necessary expenses for its own survival, the capacity of another
subject to meet this need and the given legal link binding both. 47
47
Semanario Judicial de la Federación y su Gaceta, Novena Época, v. XXI, April
2005, p. 460.
105
The Second Chamber of the Supreme Court
rules on the constitutionality of five Articles of
the Federal District Commercial Premises
Operation Law
Amparo under review 1884/2004. Condominio World Trade Center
Ciudad de México, Asociación Civil. February 14, 2005. Opinion
The Second Chamber of the Supreme Court analyzed Articles 56, 58,
59, 60 and 61 of the Federal District Commercial Premises Operation
Law (LFEMDF), that had been challenged based on the argument
that, upon enacting a law, the Legislative Body of the Federal District
(ALDF) had exceeded its sphere of authority, invading that of the
Federal Congress.
The Chamber indicated that the above articles of LFEMDF govern
the way parking lot service providers are to gauge time for payment
collection purposes. In order to determine whether such provisions
are of a "business" nature, reference must be made to the listing of
commercial activities under Article 75 of the Commerce Code
(Ccom). Although it provides a list of acts considered to be commercial,
the definition of "commerce" is ambiguous, and must be determined
in attendance to the particular case. In the opinion of the Chamber,
constitutional Article 73, section X provides that it is the responsibility
of the Federal Congress to legislate on matters of commerce while
also providing that it is the competence of the ALDF to legislate on
matters of public service, police and good government, parking lots,
and business establishments, among others. In adittion, the Court
found that the definition of "commerce" is generic. Therefore, the
Court sought a harmonious interpretation of these elements to
107
108
RELEVANT DECISIONS
respect the spirit that inspired the historical evolution of constitutional
Article 122. In attention to the matter of public establishments, the
Court noted that regulation on that matter has been the responsibility
of the Federal District, now conferred to the ALDF in constitutional
Article 122, paragraph C, Base One, Section V, section j) —where the
authority of said body to issue rules on good government is also
provided.
The powers thus conferred to the ALDF, indicated the Chamber in
the matter of parking lots, is not limited to the establishment itself,
considered in its material aspect, but also to its operation, including
working hours, prices, and time sectioning for rate purposes. While
these elements refer to an establishment whose business purpose is
to make a profit, it is true that its operation is not limited to the rights
and obligations derived from the commercial relationship between
parking lots service providers and users. It also relates to planning
urban development of the Federal District —i.e., it is bound by aspects
relating to good government and running of the city. Such a situation,
observed the Chamber, is explained by referring to the historical issues
surrounding parking lots —specifically that related with the constitutional
amendments issued in the Gaceta Oficial dated August 20, 1928.
Therefore, all provisions in this matter involve police and good
government ordinances.
In view of the above, the Court found that public parking lot
regulation on the ALDF does not invade the sphere of powers of the
Federal Congress. This in no way detracts from a conclusion that by
referring to the powers of the ALDF to legislate in the matter of parking
lots, constitutional Article 122 fails to specify that said power comprises
all that is related to parking lots operation.
The fact that the challenged norms violated the guaranty of
legality had also been mentioned by failing to indicate who shall
absorb the charge generated by preferential rates. The Court found
that Article 61 of the LFEMDF clearly defines that the beneficiaries
of the obligations set forth in the law are both the holders and the
operators of parking lots, and that, while these concepts are not
defined in LFEMDF, none of them require further clarification by
the legislative body. Nevertheless, the Parking Lot Regulations
for the Federal District (REPDF) makes evident that "holders" shall
be understood as the owners of the property, and "operators" as the
administrators. Articles 16, 18, 22, and 23 of REPDF reveal that
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the individuals required to pay the obligations derived from the operation
and running of parking lots are the proprietors or administrators.
In another vein, the Chamber pronounced on the alleged violation
of constitutional Article 5 by the articles contested, finding that
paragraphs one, two, and three of Article 61 of the law in question, by
establishing preferential rates with a discount of no less than 50% of
the authorized rate, for users of business establishments bearing a ticket
per hour/section, during the first two hours of service rendering, as
well as the 5-hour charge limit for prolonged stances per continuous
24-hour period, affect the right to work, for they prevent the earning
of a fair compensation for services rendered.48
Likewise, the Court decided that the grievance regarding invasion
of the sphere of attributions of the Federal Congress was founded with
respect to the labor matter, for Article 61 of the law in question
establishes that "...a portion of the parking lot (10%)..." shall be reserved
"...for workers..." The Chamber resolved that the last paragraph of
Article 61 of the law infringes the powers of the Federal Congress in
labor matters, by setting forth the obligation of the holders of public
parking lots to reserve 10% of the parking spaces for workers, for a
period equal to their working day, thus, attempting to impose a labor
obligation.
48
Ruling 2a. XXXI/2005, Semanario Judicial de la Federación y su Gaceta, Novena
Época, v. XXI, March 2005, p. 357.
The employer-employee relationship in
the case of state workers is evident when the
services rendered have the characteristics of
a employer-employee relationship, even if a
professional services agreement has been
executed
and Sixth Labor Collegiate Courts of the Firts Circuit. February 14,
2005. Opinion delivered by Justice Sergio Salvador Aguirre Anguiano.
The Second Chamber warned that contradictory rulings existed
given that the contending Collegiate Courts examined the same issue
and decided whether the relationship established between a state
agency and an individual is a employer-employee labor relationship
by nature or not in cases when, although a professional services
agreement has been executed, such services are rendered by a worker
who is in a subordinate capacity with respect to the head of the agency
benefiting from such services. The Courts maintained opposing points
of view, for the Second Labor Collegiate Court of First Circuit, deemed
that a bureaucratic labor relationship is indeed established, for its
characteristic feature is the element of subordination. Thus, the
agreement may be considered equivalent to the designation demanded
by the State Workers Law (LFTSE). The Sixth Labor Collegiate Court
of Firts Circuit, however, deemed that no employer-employee
relationship labor is established, for the subordination character
in rendering the services is insufficient, and formal designation is also
required.
The Second noted that in resolution to opposing rulings 96/95,
it had issued ruling 2a./J. 76/98, 49 where it maintained:
49
Ib., v. VIII, October 1998, p. 568.
111
112
RELEVANT DECISIONS
a)
b)
c)
d)
e)
f)
g)
The relation between the State and those rendering the service
is comparable to employer-employee labor relationships. Then, the
State should be considered a sui generis employer, with the exception
of constitutional Article 123, paragraph B, fraction XIII, with respect
to members of the army, navy and law enforcement corps, as well
as with respect to foreign affairs staff.
From Articles 2, 3, and 44, fraction I of LFTSE it may be derived
that the relationship between the State and the service providers
is expressly defined by the legislator as a legal labor relationship,
established between the heads of the state agencies listed in Article
1 of the above law and state-agency payroll workers; that the activity
carried out by the worker is a physical or intellectual service (or both)
to be carried out by the worker with the appropriate intensity and
care, subject to the guidance of their superiors and the respective
laws and regulations. These characteristics prove the power of
command of the heads of state agencies and the duty of obedience
of the workers in the service of the state, even though this is
predetermined under the law.
Article 15 of LFTSE sets forth the elements required by designations
and which, therefore, form the employer-employee relationship.
Said elements are not derived from the free will of the parties,
and their establishment in the law is a guarantee for workers at the
service of the state with respect to the terms and conditions under
which their activities are to be carried out.
From Articles 3, 12, 15 and 18 of LFTSE it is evident that the
employer-employee relationship begins by designation or inclusion
in a payroll. This condition allows for a series of miscellaneous
provisions to be automatically applied to appointed person, thereby
vesting him or her with a given legal situation. However, a true
interpretation of the above legal precepts would indicate that
confirmation of the existence of a employer-employee relationship
does not invariably depend on the issuance of appointment or
inclusion in the list of temporary workers.
In accordance with Article 14, section V of the LFTSE, paying
salary and other benefits to workers every fortnight has been a
recurrent practice in state agencies. This means that, on occasions,
appointment is not issued at the start of such term or a payroll is
drafted at the end of the fortnight. Therefore, the case may be
that, before termination of said term, the head of the state
agency refuses to issue such designation and does not
consequently recognize the employer-employee relationship,
which would be detrimental not only to the public office but
also to the State, for such a lack of designation would rule out
any possibility of potential responsibility attributable to the former
for the time he or she rendered services. Moreover, it may happen
that the temporary or in turn worker is not listed in the payroll,
with identical consequences.
Demanding appointment or inclusion on the temps listings as
the only means to demonstrate a employer-employee relationship
would imply disowning the existence of the evidentiary system
provided for in Article 132 of the LFTSE.
h)
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The legal relationship between the state and those who provide
services must be initially demonstrated through designation or
inclusion in a temps listing. Whenever the head of the state agency
appoints a person to render services by word-of-mouth and
without the appropriate formalities, such an irregular situation
can harm the worker. Therefore, in keeping with the principles
derived from constitutional Article 123, paragraph B and Articles 43,
118, 124, and other applicable articles of the LFTSE, a public officer
is empowered to demand issuance of appointment or formal inclusion
in a payroll and may support his actions through any evidentiary
means and, once accredited, the remaining actions that may be
exercisable by that official may proceed, as the case may be.
The Chamber was of the opinion that, if according to the above ruling,
the existence of the employer-employee relationship between the State
and its workers may be supported by any means upon non-compliance
with the formality relating to appointment or inclusion in the temporary
workers payroll. The existence of the employer-employee relationship
between a state agency and an individual rendering his or her services
is supported even if there is no designation or inclusion in a payroll
as a result of non-compliance with the formalities above whenever it is
accredited through probatory means that the services rendered comply
with all characteristics of a employer-employee relationship established
between state agencies and their workers, which are in turn derived from
the provisions of the LFTSE-specifically, Articles 2, 3, 15, and 44,
fraction I, in accordance wherewith, a worker is any person rendering
a physical or intellectual service (or both), with the appropriate intensity
and care, subject to guidance from his or her superiors and the appropriate
laws and regulations. This shows the power of command of the heads
of state agencies and the duty of obedience of workers. Thus, if the
above is proven, as well as the fact that there was continuity in
the rendering of services and that worker rendered the services in the
place and according to the schedule appointed, in exchange for an
economic compensation, it should be concluded that the existence of
the relevant employer-emplyee relationship is proven. The fact that the
rendering of services had originated from the execution of a professional
services agreement bears no prejudice on the above, for it is not the
designation of that agreement that determines the nature of the services
rendered to the State. Thus, if they fulfill all the characteristics of a
employer-employee relationship between the State and its workers,
such link shall be deemed established. 50
50
Suspension in direct labor amparo lawsuit
shall be denied with respect to the payment of
benefits in kind established under the Mexican
Social Security Act in favor of a worker suffering
occupational hazards to ensure their subsistence,
in terms of Article 174 of the Amparo Law
Resolution to Opposite Rulings 162/2004-SS. Between the Ninth,
Twelfth, and Thirteenth Labor Collegiate Courts of the Firts Circuit.
February 14, 2005. Opinion delivered by Justice Guillermo I. Ortiz
Mayagoitia.
The Ninth, Twelfth, and Thirteenth Labor Collegiate Courts of the
Firts Circuit took the analysis of the same elements as a starting point,
for they issued their criteria upon resolving claims where the decision
of the president of the corresponding board was challenged. This
decision denied the suspension requested by the Mexican Social
Security Institute (IMSS) for an amount equal to as much as four months
compensation due to partial permanent disability determined for a
worker in order to ensure his or her subsistence during direct amparo
proceedings. It further granted injunctive relief for the rest of the
sentence, including the benefits in kind provided for in Article 63 of
the above Social Security Act (LSS) —corresponding to Article 56
of the current law—, the latter constituting the legal cuestion that
occupied the above Courts to determine the legality of the challenged
award.
Upon resolving the case, the contending Collegiate Courts reached
contradictory findings. The Ninth and Twelfth Labor Collegiate Courts
of the Firts Circuit held that whenever the alleged act in a direct amparo
proceedings is a sentence requiring IMSS to pay the compensation
derived from an occupational hazard and, hence, the aforementioned
benefits in kind, suspension should be denied with respect payments
for they translate into benefits for the protection of the worker’s health,
115
116
RELEVANT DECISIONS
necessary for his or her subsistence. In turn, the Thirteenth Collegiate
Court of the First Circuit concluded the opposite on the grounds that,
in terms of labor law, the only aspect guaranteed is the worker’s
subsistence while the trial is resolved. Thus, if that is satisfied through
a rejection of the suspension in attendance to the main benefit (payment
of appropriate compensation), it must be granted for the remaining
sentence relating to secondary benefits (which were classified under
the benefits in kind category)
Thus, the Second Chamber of the Supreme Court deemed the
existence of contradictory rulings and decided to clarify whether, in
dealing with a suspension of payment in direct amparo proceedings
instituted against an award ordering payment by IMSS of all benefits
derived from occupational hazards, suspension must be rejected only
with respect to the corresponding compensation, or otherwise, whether
in order to ensure the subsistence of the worker, such measure must
be rejected with respect to the benefits in kind as provided for in Article
63 of the above LSS. (56 of the current law)
The ruling of the Court basically matched that of the Ninth and
Twelfth Collegiate Labor Courts of the First Circuit.
In fact, the Second Chamber resolved that, for occupational hazards,
the legislator established cash and in-kind benefits to which the
insured parties suffering occupational hazards are entitled. Therefore,
upon determination of worker’s disability through an award, either
through injury or functional disruption produced by an occupational
accident, or by a pathological state motivated by an occupational condition,
the order to provide benefits in kind, as provided for in LSS, is deemed
indispensable for subsistence purposes in virtue of the nature of the
main action they derive from —the acknowledgment of the disability
produced by an occupational hazard. Thus, whenever a sentence requires
IMSS to pay the insured party medical, surgical and pharmaceutical
assistance, hospital services, prosthetics and orthopedics and rehab
apparatus, suspension must be rejected with respect to such benefits
in kind in order to ensure the survival of the insured party, while the
trial is resolved, in accordance with Article 174 of the Amparo Law. 51
51
Because it is an integral part of the award,
clarification may be sought through direct
amparo proceedings
Resolution to Opposite Rulings 174/2004-SS. Between the Collegiate
Labor Court of the Second Circuit and the Third Collegiate Court of
the Twenty First Circuit. February 14, 2005. Opinion delivered by
Justice Guillermo I. Ortiz Mayagoitia.
The Collegiate Labor Court of the Second Circuit and the Third
Collegiate Court of the Twenty First Circuit ruled on legal matters that
are basically the same —relating to the most appropriate amparo channel
to challenge a decision to clarify a sentence, regulated by Article 847 of
the Mexican Labor Law (LFT)— and adopted contradictory rulings.
Considering that such act is the only subject of the constitutional litis,
the former determined admissibility of a direct amparo, while the latter
Court deemed that the challenge must be by way of an indirect amparo,
based on diverse juridical interpretations on the question of whether
the act at hand represents a resolution that brings a lawsuit to an end or
whether it is a decision passed subsequently.
The second Chamber of the Supreme Court, ruled in accordance
with Articles 837, section III, and 847 of the LFT. In the opinion of the
Chamber, the cited law provides that a resolution of the Labor Board
regarding a labor conflict is an award, and it may be subject to
clarification if so requested by the parties within a three-day term, in
order to "correct mistakes or specify any points".
The Chamber noted that, for labor matters, in accordance with
Article 847 of the LFT, four characteristics are evident with respect to
the idea of clarifying a decision:
117
118
RELEVANT DECISIONS
i)
j)
k)
l)
Parties are required to make such request within 3 days "after
service of award".
The purpose of the concept is to "correct errors or specify any points".
The decision of the Board with respect to the requested clarification
has the restriction of "under no circumstances being varied in terms
of the meaning of the resolution". (i.e., award)
The clarifying decision shall be considered a part of the same.
As for the last characteristic, the Second Chamber made several
observations. Firstly, it pointed out that Article 847 of the LFT does
not expressly set forth that the clarifying decision is part of the award.
However, according to the Second Chamber, this does not alter an
element inherent to the concept in question, for, by virtue of its nature,
the clarifying decision is in fact a part of the award.
The first reason is of a logical nature, for the close relation between
the award and its clarification is evident. In order to exist in legal terms,
clarification necessarily presupposes the existence of the award,
meaning that the latter cannot exist without the former. Moreover,
the Chamber added, it should be emphasized that the "clarification of the
decision" seeks "to correct mistakes or specify a given point" of the very
award, so that it seeks to correct all mistakes or inaccuracies. Thus,
the pronouncement made both in the award and its clarification is
based on the analysis of the labor conflict. Lastly, the final limit of the
meaning is the sentence of the corrected or rectified award given that
the law in question indicates that "under no circumstances shall the
meaning of the resolution vary". (i.e., a clarifying decision may not
surpass its related decision). Thus, other than confirming that both
resolutions are based on theresolution of the labor conflict, it
demonstrates that the clarification does not constitute a separate or
independent resolution from the sentence issued at the conclusion of
the labor lawsuit.
As a result, the Second Chamber found that a clarification is part
of a decision. Therefore, they are invariably of a common nature —that is
to say, they resolve a labor dispute and constitute a resolution that
brings proceedings to an end. As for the amparo trial proceedings by
means of which the clarifying decision may be requested when
clarification constitutes the sole act of the constitutional litis, the Second
Chamber resorted to the contents of Articles 158 in relation with
numerals 44 and 46 of the Amparo Law. According to the legal
provision, and considering that the clarifying decision, by legal fiction,
is incorporated into the related award and its amparo claim is made
directly, an appeal can be filed with the Collegiate Circuit Court. For the
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analysis of the constitutionality of the resolution, a preparation and
test period is not required; that is to say, its study may be exhausted in
a single proceeding.
The Chamber also indicated that, materially and by definition,
the clarifying decision is issued after the award itself. Nonetheless, this
must not be taken to mean that section III of Article 114 of the LA,
found below, does not apply:
Article 114. Amparo will be requested from a District Judge:
...
III. Against acts by judicial, administrative or labor courts executed out
of Court/after conclusion.
The Second Chamber indicated that, to determine if we’re dealing
with the act issued after the conclusion of the trial, the very nature of
the act must be evaluated. Therefore, if clarification forms part of the
act, which, upon issuing a judgement regarding a labor conflict, brings
the trial to an end, it is evident that, by legal fiction, the aforementioned
clarifying decision is of the same nature, meaning that, for purposes of
the amparo, it is given the same treatment as the award, thereby
invoking the rule of Article 158 of the law in question. 52
52
Articles 10 of the National Military Service Law
and 38 of its regulations, by setting forth
exceptions with respect to compliance with the
military service, do not breach the equity
guaranty
Amparo under review 1959/2004. February 16, 2005. Opinión delivered
by Justice Juan N. Silva Meza.
The District Judge decided to refuse the claimant the amparo against the
Military Service Law (LSMN) and its regulations. Therefore, the party
filing for a guaranty trial filed for an appeal, which was turned over to
the appropriate Collegiate Court, which in turn resolved that it was
legally incompetent and ordered referral of proceedings to the Mexican
Supreme Court.
The First Chamber of the Supreme Court, upon hearing the case,
considered that the litis was limited to determining whether Articles
10 of LSMN and 38 of its regulations violated the guaranty of equality
because they excluded certain persons from being required to do
military service.
Having specified the above, the Chamber referred to the scope and
potential limitations of the guaranty of equality and recalled the contents
of Ruling 1a. CXXXII/2004,53 establishing the criteria to determine
whether a law respects such guaranty.
Based on criteria, found in the above mentioned case, the Chamber
examined the exceptions contained in the challenged articles. It first
53
This criterion constituted Ruling 1a./J. 55/2006, published in Semanario Judicial
de la Federación y su Gaceta, Novena Época, v. XXIV, September 2006, p. 75.
121
122
RELEVANT DECISIONS
examined whether the above exceptions had a valid and constitutional
objective, and specified, that Article 73, section XIV of the Federal
Constitution, confers the Federal Congress the powers to regulate the
organization and service of the national Army, Navy, and Air
Force. Therefore, because military service is part of the structure of
the Army, the legislature may establish exemptions in that respect.
Moreover, on an objective level, it indicated that the exception made
is justified to the extent that the Congress deemed it advisable to exempt
from military service those who do not meet the needs of the national
defense. In addition, it affirmed the fact that the Ministry of
National Defense (SEDENA) is empowered by regulatory channels
to establish all exemptions, which is consistent with Article 29, section
II, of the Federal Public Administration Law (LOAPF).
The Court also analyzed the rationality of the exception and found
that the fact that public officers referred to in constitutional Article 108
—as well as those belonging to police institutions— are exempt from
the military service, is reasonable, for it is not advisable for such public
officials to be taken off their duties to render other services. By the
same token, it considered rational the exclusion of religious officials
—for the Constitution holds that they may not fill public positions,
and military service is considered to be of the public order— neither
can they be candidates to public office.
Thirdly, the Court verified compliance with the proportionality
requirement, for it considered that all exceptions contemplated generate
the same legal situation for all persons to whom the norms in question
are applied.
Lastly, the Chamber asserted that the law under question does
not violated to the individual guarantees set forth under constitutional
Article 1.
Thus, given the above considerations, the First Chamber found
that, as opposed to the arguments of the appellant, the articles
contested do not violate the equality guaranty provided all exemptions
are constitutionally justified and their related precepts give equal
treatment to all persons to whom they are applicable. 54
54
Ruling 1a. XXVII/2005, Semanario Judicial de la Federación y su Gaceta, v. XXI,
April 2005, p. 729.
The measures established under constitutional
Article 107, Section XVI are not applicable to
the Secretary of Agrarian Reform whenever
failure to comply with such resolution is
excusable
Sentence noncompliance incident 53/2002. Derived from indirect
amparo trial 46/87. February 21, 2005. Opinion delivered by Justice
Juan Díaz Romero.
The noncompliance incident arose by virtue of the opinion issued
by the Justices of the Third Collegiate Administrative Court of the First
Circuit in the incident of noncompliance of sentence 8/2001, whereby
it was considered valid to apply to the then Ministry of the Agrarian
Reform (SRA) the measures contemplated in Article 107, section XVI
of the Federal Constitution. The SRA was considered to have failed to
comply with the damages resolution of March 1, 2001, issued in indirect
amparo trial number 46/87, and with the sentence issued in claim
recourse number Q.A. 343/2002, which declared this means of
challenge groundless as deduced by the corresponding authority against
the resolution first specified whereby the SRA was ordered to pay
claimant, in substitution of the original compliance of the guaranty
executory writ, an amount of over one billion pesos —from which the
responsible authority consigned several bills of deposit totaling
approximately half the amount it was ordered to pay.
The bench of the Supreme Court established that their review of
the case was limited to analyzing whether there was contempt by the
Secretary of the Agrarian Reform towards the damages resolution
ordered by the amparo authority and, if applicable, to determine
whether non-compliance was excusable or not, and hence, whether
all provisions established in section XVI of constitutional Article 107
were applicable.
123
124
RELEVANT DECISIONS
In the first place, the Court mentioned that the appropriate
authorities are compelled to observe final resolutions issued in the
case and that both forms of compliance (substitute performance or
execution of the law) protected by constitutional Article 107, section
XVI, so that the rules applicable to the incident of noncompliance
of sentence are also applicable to said proceedings. Therefore, it
deemed that if the responsible authorities fail to observe the above
resolution or covenant after being requested to do so, and prior to
the opinion of the appropriate Circuit Court, the Supreme Court
must decide on the measures relating to application of Article 107,
section XVI of the Federal Constitution. Thus, the Court, deemed
that the incident of noncompliance of sentence is indeed admissible
due to noncompliance with the resolution requiring payment of
damages substituting the original compliance with the amparo
executory writ.
Therefore, the Court, established that, in execution of that
attribution, the Supreme Court has powers that go from the review
of the procedure to enactment by operation of law of the substitute
performance, without any inconvenience or impediment to verify
the resolutions of damages, for it was deemed that if all resolutions
by the District Judge and the Collegiate Circuit Court that intervened
previously were not legally correct they could not be deemed binding
for the Court. Thus although the incidental damages resolution
issued in the respective proceeding was rendered unchallengeable
by nature and should constitute res judicata, that does not rule out
the possibility that, once the matter is heard by the Supreme Court, the
latter may officially verify by operation of law, its legality, for this
is an essential presumption for the application of transcendental
measures as established in section XVI of Article 107 of the
Constitution. 55
So, in keeping with the above considerations, and following an
analysis of the legality of the sentence in question, the Court advised
that the damages whose nonpayment lead to the institution of legal
proceedings against the head of the SRA were not correctly quantified.
As a matter of fact, the Court indicated that through damage
payment or substitute compliance of the guaranty executory writ, the
claimant is granted the right to obtain an amount of money equal
to the cash value of the benefits and the sentence imposes upon the
55
Ruling P. XIX/2004, ib., v. XIX, May 2004, p. 148.
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responsible party or the authority in charge compliance that it be
executed in a timely fashion. If not, the claimant has the right to various
benefits such as the payment of lawful profits that claimant ceased to
obtain due to the alleged act or any other concept of the equivalent of
the essential obligation. 56 Likewise, by virtue of the restitutory effects
of an amparo mandate, things should return to their pre-violation status,
meaning that compliance must be retroactive to the time when violation
of guarantees occurred, in order to place claimant in his status prior to
the acts jeopardizing his fundamental interests.
The Court, in keeping with the above considerations, determined
that the damages resolution whose noncompliance was analyzed failed to
comply with the restitutory principles set forth by Article 80 of the Amparo
Law, since, if compliance consists of cash payment, appraisal must be
applied retroactively to the time of the violation of guarantees and,
once obtained, be —in force until payment.57 Therefore, the Court,
determined that in the case under examination, the appraisal was
incorrect due to the fact that it was made in accordance with current
and not retrospective commercial values, as well as attending to the
current conditions and characteristics of the property. Aspects such as
the original conditions were neglected, as well as the fact that the lot
was illegally and irregularly occupied by unstable holders, and that
under such conditions, the only potential acquirer was the Commission
for the Regularization of Land Occupancy.
The analysis of the resolution lead the Court, to establish that the
damages resolution derived from the incident of noncompliance of
sentence was issued in contravention of the LA. This was sufficient to
consider it unenforceable. The Court added that compliance with the
above incidental resolution would compromise the operation of the
SRA, for the sentence is equal to a significant percentage of the budget
appointed for its activities, and was therefore disproportionate in
relation to the possibilities of that government agency.
Likewise, the Court, addresed the fact that the Secretary of Agrarian
Reform is not free to dispose of the resources assigned to the agency
that he or she heads. Therefore, it deemed that this, along with all other
considerations above, reinforces the premise that noncompliance with
the resolution for payment of damages is excusable, and that his or her
56
57
Ruling P./J. 99/97, ib., v. VI, December 1997, p. 8.
Ruling P. XX/2004, ib., v. XIX, May 2004, p. 152.
126
RELEVANT DECISIONS
removal from the post and prosecution do not represent the solution to
the incident of noncompliance of sentence.
Thus while the Court, found that noncompliance of the substitute
performance resolution indeed existed, it also determined that it was
excusable and that all measures contemplated under section XVI of
Article 107 of the Constitution should not be applied to the Secretary
of Agrarian Reform.
The Property Tax Reform included in Article
152, Section I, of the Federal District Financial
Code, effective as of January 1st, 2004, does not
provide for claims against the unconstitutionality
of Article 149, Section II of such regulations
regardless of whether its application has been
previously accepted
And Seventh Collegiate Administrative Courts of the First Circuit.
February 25, 2005. Opinion delivered by Justice Genaro David
Góngora Pimentel.
The Seventh Collegiate Administrative Court of the First Circuit and the
Third Collegiate Administrative Court of the same Circuit, upon
resolving amparos under review numbers 3677/2004 and 261/2004,
based on the same elements, reached different findings. Both courts
examined whether the amendment to the property tax included in
Article 152, section I of the Financial Code of the Federal District
(CFDF), effective as of January 1st, 2004, had ordinary or essential
bearing on such tax base to the degree that the admissibility of the
amparo trial with respect to Article 149, section II of the above ordinance
is justified.
However, the Seventh Collegiate Administrative Court of the
First Circuit indicated that amendment to one or several legal precepts
in the same ordinance solely authorizes the parties to challenge
unconstitutionality of those that have been subject to the new
legislative process even if its text has been left unchanged, but does not
entitle the parties to resort to an amparo to challenge another law
not included in the amendment decree simply because it forms part of
the same legal system. The Third Collegiate Administrative Court of the
First Circuit determined that all amendments to the CFDF, issued in
the Official Gazette of the Federal District of December 26, 2003, date
on which Article 152, section I of said legal ordinance were pased
127
128
RELEVANT DECISIONS
upon consideration of the rate applicable to the cadastral value of a
property, and constitute a new tax treatment transcending into
the legal sphere of taxpayers, which gives him or her legal standings
to object to the tax system as a whole, contemplating the calculation
of the property tax.
Under these circumstances, the Second Chamber of the Supreme
Court deemed that amendment to section I of Article 152 of the CFDF,
in force as of January 1 st, 2004, does not grant the right to claim the
unconstitutionality of Article 149, section II of said ordinance, if consent
to such article had been previously granted and whenever the mere
claim of the different values contained in the rate for purposes of
inflation "does not alter the mechanics to integrate the property tax
base, and does not transcend into its scope or meaning, and neither
does it stop considering it an essential" 58 tax element.
The Chamber based the above finding on the fact that, while it is
true that the property tax rate and base are essential elements of the
same law, it is also true that the amendment to section I of Article 152
of the CFDF does not materially affect the mechanics to integrate such
tax base, which is why the admissibility of the amparo trial with respect
to section II of Article 149 of the above ordinance is not justified.
58
MARCH
2005
Articles 78 and 84 of the Public Employees Law
contravene the principle of union freedom set
forth in Article 123, subparagraph B, Section
X of the Federal Constitution
Amparo under review 1878/2004. March 4, 2005. Opinion delivered
by Justice Genaro David Góngora Pimentel.
In accordance with the arguments expressed by claimant in the petition,
the District Judge confirmed the appealed sentence as to the fact that
becase Articles 78 and 84 of the Public Employees Law (LFTSE)
establish the existence of a single union federation recognized by the
State they violate constitutional Article 123, paragraph B, section X.
The decision indicated that the establishment of a single union is
detrimental to the spirit that motivated the legislator in passing
constitutional Article 123, which sought to establish, free of restrictions,
minimum labor rights in favor of workers, including the right to
association to defend their interests.
In appealing the sentence, the appellant claimed that the Court
erroneously and inapplicably interpreted Articles 78 and 84 of the
LFTSE as contravening the Constitution.
In view of the above arguments, the Second Chamber of the
Supreme Court determined that the litis in the amparo trial was limited
to deciding the constitutionality of the challenged legal provisions.
The Chamber considered that the right to unionize guaranteed by the
Constitution in Article 123, paragraph B, section X, encompasses three
129
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RELEVANT DECISIONS
elements: the association of workers or employers to form a union,
the association of unions to form federations, and the association of
federations to form confederations, and that the Constitution does not
limit the right to association exclusively to unions. Therefore, it deemed
that, because it is a principle of law that matters not prohibited to
citizens are permitted, and that it is not the intention of the Constitution
to limit the above right, it is evident that the Congress, upon issuing
Articles 78 and 84 of the LFTSE, violated the freedom to unionize,
which includes the right to form federations.
Likewise, the Chamber established that the sentence under appeal
was mainly grounded on section X, paragraph B of Article 123 of the
Constitution, in the sense that the latter considers union freedom with
a full sense of universality based on the personal right of each worker
to associate and in recognition of a collective right acquired the moment
a union comes into existence. It also noted that the laws issued by the
Congress to govern labor relations between the State and its workers
must therefore respect the principle of union freedom in the terms
established by the Federal Constitution, as expressed in constitutional
Article 73, section X, in fine, without establishing any limits to the
exercise of said right.
The Chamber elaborated that, while the legislature is empowered
by the Constitution to enact norms, terms, conditions, and guidelines
to govern labor matters, it must do so without contravening the
Constitution. Such norms must necessarily allow workers to exercise
their labor rights (as in the case of freedom of association), and it is
not empowered to prohibit the existence of organizations other than
those created by a decree of the legislature.
Based on the above considerations, the Chamber confirmed the
sentence under appeal and stated that the challenged legal provisions,
by establishing that the State does not recognize a union federation of
public emplayees, and limits the existence of such Federation,
contravene constitutional Article 123, paragraph B, section X, because
they restrict the right of worker unionization.59
59
Ruling 2a. LVII/2005, ib., June 2005, p. 238.
The share cor responding to the federal
government from profits obtained by citizens
authorized to organize raffles or draws is not
considered exploitation but a tax regulated by
constitutional Article 31, Section IV
by Justice Sergio A. Valls Hernández.
Amparo under review 1697/2004, challenged the Decree marking the
creation of the Federal Gaming and Lottery Law (LFJS) dated
December 30, 1947 —especially Article 5— on the grounds that the
share therein contemplated for the government is not a right but an
exploitation. The First Chamber of the Supreme Court observed that,
in the challenged article, the legislature established that the Ministry
of the Interior (SEGOB) will indicate the share corresponding to the
federal government of the profits derived by citizens that hold permits
to carry out games or lotteries as permitted in Article 2 of the LFJS.
It also noted that under said legislation, the citizens who obtain such
permit have the obligation to pay the federal government a benefit
known as share, which represents public income for the State.
The Chamber added that under the terms of the above provision,
the share amount payable by the licensee should be derived from the
profits obtained from the games or lotteries, thus binding the calculation
of said amount to the benefits or profits received. Likewise, Article
2 of the Federal Tax Code establishes that all tax payments are classified
as taxes, social security taxes, improvement taxes, or duties.
In the opinion of the Chamber , the definition of "share" presented
in the legislation is not consistent with any of the categories of taxes
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132
RELEVANT DECISIONS
contemplated under the Federal Tax Code. Thus it was advisable to
specify whether the tax in question was indeed a tax or non-tax
income for the State and, if applicable, the type of tax under which it
should be classified. The First Chamber indicated that, since Article
5 of the LFJS does not clarify the legal nature of the tax and
considering that the appealing authority had held that it is considered
an exploitation, an analysis of the nature of the tax in question was
required to determine: a) whether it constitutes a legitimate exercise
of the tax powers of the State and which category it belongs to;
b) whether it is subject to the principles of tax justice contemplated
under Article 31, section IV of the Federal Constitution, and c) whether
to exercise its collection, the relevant authority previously hears the
citizen to which Article 5 of the LFJS aplies.
The Chamber started off by determining the type of income
corresponding to the tax contemplated under Article 5 of the LFJS.
In this sense, it clarified that the State resorts to various means to
obtain income. Doctrinarily, state income is classified as tax income
and financial income. While the former is derived from the tax-paying
capacity of taxpayers and emerges from a tax law creating a legal
relation of subordination between state and citizen, financial income
is derived from various factors alien to the State´s tax authority.
The Chamber argued that, in accordance with Article 5 of the LFJS, the
justification or basis of the tax is the service (the issuance of a permit
to carry out games or lotteries) rendered by the State. In relation to
the legal relation born of the petition and issuance of the permit in
question, the State is endowed with legal authority, in accordance with
Article 27, section XXI of the Federal Public Administration Law
(LOAPF). By virtue of this, said taxes are for the rendering of a public
service which the State renders individually to the citizen, and the
tax is paid as compensation for a service, consisting of the issuance
of a permit.
On the other hand, the Chamber recalled that a characteristic feature
of taxes is one-sidedness in terms of the manner this power is exercised
to create the respective benefit and that the law confers the possibility to
challenge the levying of a tax to the affected parties. As for economic benefits,
when the origin of the payment obligation is linked to a specific act by
the State, as in the case of the issuance of a permit to hold games and
lotteries, the First Chamber asserted that, in order to determine whether
the former meets the requirement of one-sidedness, it is necessary to
determine the nature of the legal relation between citizens and the
State (where the corresponding payment obligation emerges).
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133
The Chamber noted that the fact that the tax at hand may be
exploitative by nature cannot be determined when in its creation process
and amount determination the State does not grant the prior hearing
guaranty to those affected by the norm. Moreover, the taxes for the
rendering of a public service by the State to the licensee, are not
exploitative if there is a mediating agreement of will and compliance
with an administrative norm. Therefore, the taxes cannot be considered
exploitation for they do not abuse of the one-sided expression of the
tax authority of the State. The Chamber emphasized that exploitation
may be understood as non-tax sanctions, non-tax surcharges, sanctions,
and fines and services not related to the issuance of the permit provided
for in Article 5 of the LFJS.
As to the nature of licensing for games and lotteries, the First
Chamber analyzed Articles 1 through 4, 7 through 10 and 15 of the
LFJS and inferred that citizens permitted to hold games or lotteries as
contemplated in Article 2 (and not in the hypothesis of Article 15)
must necessarily resort to SEGOB and request the issuance of the
corresponding permit, whose issuance must fulfill the requirements
established by such agency. Because of the request, the legal relation
between the citizens and the SEGOB is not one of coordination, but
subordination, whereby granting of said permissive act is not the will
of the citizen but that of the appropriate state body. This reveals that
the above consideration meets the requirement of one-sidedness and,
hence, the State is carrying out its legal duties.
Thus, the First Chamber found that the tax established under
Article 5 of the LFJS to be paid by citizens constitutes a tax under the
clasification of payment for services, meaning that its regulation is indeed
governed by the principles of constitutional Article 31, section IV.
The legislature of the State of Aguascalientes
is empowered by the constitution to issue the law
governing the sale and consumption of alcoholic
beverages
Constitutional dispute 8/2002. Municipality of Aguascalientes, State
of Aguascalientes. March 10, 2005. Opinion delivered by Justice
Sergio Salvador Aguirre Anguiano.
The Municipality of Aguascalientes, State of Aguascalientes, filed a
constitutional appeal arguing the invalidity of the State L aw
Governing the Sale and Consumption of Alcoholic Beverages issued
on November 26, 2001, in the Official Gazette of the State of
Aguascalientes. Unconstitutionality was argued on the basis that the
local congress is not legally empowered to issue laws aimed at
combating alcoholism. However, Article 117 of the Federal Constitution
empowers legislatures to issue laws for such purposes, although this
power is not expressly conferred under Article 27 of the Constitution
of the State of Aguscalientes.
The bench of the Supreme Court, clarified that the fact that Article
27 of the Constitution of Aguascalientes does not expressly set forth
the power of the local congress to legislate in anti-alcoholism matters
does not imply that said legislature exceeds its power by enacting the
law in question, for such powers derive directly from the last paragraph
of constitutional Article 117, which allows legislatures to issue
anti-alcoholism laws.60
60
Ruling P./J. 80/2005, ib., v. XXII, July 2005, p. 801.
135
136
RELEVANT DECISIONS
Furthermore, the Court, determined that Articles 1 through 6 of
the law under challenge, by establishing the guidelines for municipalities
(with prior study of each case) to authorize, control, and monitor the
sale and consumption of alcoholic beverages within their attributions,
does not violate the regulatory powers of the municipalities. The law
establishes general guidelines for the municipalities of the state to
regulate all matter relating to such beverages with a view to encouraging
a responsible culture related to alcohol consumption. This goes in
accordance with section II, paragraph two, subsection a) Article 115,
in relation to the last paragraph of Article 117 —both of the Federal
Constitution.61 Likewise, the Court considered that Articles 7 and 8 of
the challenged law contemplating as the empowered authority for the
aplication of the law, among others, the Director of the Health Institute
of the State of Aguascalientes, abide by Article 115, section I of the
Federal Constitution, since such Institute may not be considered an
inter mediar y authority of the kind prohibited by the above
constitutional provision. The above Institute, elaborated the Court, is
but a body decentralized from the local government with powers of
support, coordination, operation, and promotion, meaning that it must
be considered an operative and promotional institution related to the
rendering of health services to the population of the state.62
In another line of thought, the fact that Articles 11 through 26 of
the challenged law regulate the classification of establishments and
premises where alcoholic beverages may be sold or consumed, their
working hours, location, related sales prohibition and over consumption
in public places, etc., represents no violation whatsoever of the
municipal regulatory powers contemplated under section II of
constitutional Article 115. They establish the general guidelines for
the municipal public administration referred to by the above
constitutional provision, which are in-line with the laws issued by the
legislature. In addition, the guidelines are conducive to fighting
alcoholism. 63
Furthermore, the Court observed that Article 27 of the challenged
law indicates the mode of issuance of the various categories of licenses
and permits governing the sale of high-alcohol level beverages and
that Article 28, which provides the procedure to be followed in
obtaining the licenses or permits above, is conducive to fighting
61
62
63
Ruling P./J. 81/2005, ib., p. 803.
Ruling P./J. 82/2005, ib., August 2005, p. 1227.
Ruling P./J. 83/2005, ib., July 2005, p. 803.
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137
alcoholism, in accordance with Article 117 of the Federal Constitution.
Thus there is no violation of constitutional Article 115, section II, for
the legislature may pass laws to establish the qualities and modes of the
licenses issued for the consumption and sale of alcoholic beverages. 64
Moreover, the Court deemed that provisions 29 through 33 of
the law, which establish the creation of the Municipal Council of
Restricted Lines of Business on the Sale and Consumption of Alcoholic
Beverages as a consultative body to the Municipal Presidency, as well
as its integration and operation, do not invade the regulatory powers
of the municipality. They constitute the general guidelines governing
the municipal public administration as referred to in section II, Article
115 of the Federal Constitution. Moreover, such norms are serve the
purpose of preventing alcoholism in the state. This is in conformity
with constitutional Article 117, last paragraph.65 The above law does
not infringe on municipal powers since the above Council is not a part
of the Municipal government, but is only set up as a consultative body to
the City Council. As a matter of fact, the Court, indicated that the
powers granted to said Council do not interfere with those of the
municipal government, for they represent mere preventive/corrective
anti-alcoholism proposals within the municipality, apart from the fact
that such consultative organ is formed by various members of the City
Council and residents. The creation and setup of the above Council
does not prevent the City Council from designating its own commission
to monitor the matter in question, on the understanding that the above
Council is a mere consultative body.66
As a result, the Court declared the above constitutional dispute
groundless and confirmed the validity of the L aw Governing
the Sale and Consumption of Alcoholic Beverages for the State of
Aguascalientes.
64
65
66
Ruling: P./J. 84/2005, ib., p. 802.
Ruling: P./J. 85/2005, ib., p. 804.
Ruling: P./J. 86/2005, ib., p. 805.
All roads, highways, and bridges linking two
or more states, or connecting with any
roads of a foreign country, are subject to federal
jurisdiction. Therefore, the Federal Government
needs no authorization from the local
Congresses for their construction
Constitutional Dispute 23/2003. State of Chihuahua. March 15, 2005.
Opinion delivered by Justice Olga Sánchez Cordero de García Villegas.
The act under challenge, legal document SCT.637.100.034/03, which
contains the administrative resolution dated March 7, 2003, whereby the
Federal Ministry of Communications and Transportation advised
the Secretary of Communications and Public Works of the State of
Chihuahua, that the Parral-Jiménez highway in that State belongs
comes under federal jurisdiction and that, consequently, the
aforementioned State entity is prohibited from charging tolls, and
should cease to do so. The bench of the Supreme Court, after analyzing
several pieces of evidence, found that the stretch of highway in dispute
—Hidalgo del Parral-Jiménez— is part of the highway known as
Route 45, connecting Mexico City and Ciudad Juárez, and continues on
into the United States of America. Along its route, it also connects
Chihuahua, Durango, Zacatecas, Aguascalientes, Jalisco, Guanajuato,
Querétaro and the State of Mexico. The Court thus concluded that the
road qualified as a general route of communication and, in principle,
came under federal jurisdiction under the provisions of constitutional
Articles 27, 28 and 73, section XVII, and related subsections a) and b)
of Article 2 of the Federal Law of Roads, Bridges, and Vehicles
(LCPAF).67
67
Ruling P. XXI/2005, ib., July 2005, p. 955.
139
140
RELEVANT DECISIONS
However, and for purposes of determining what level of government
is competent to exercise jurisdiction over the stretch of highway running
between Parral and Jiménez, the Court, specified the legal nature of
property classified as general routes of communication.
The Court, observed that in accordance with Articles 1, 2, section
I and 29, section IX of the General Law of National Property, and
according to the constitutional powers granted to the Federal Congress,
all roads, highways, and bridges constituting general routes of
communication, as in the case of a stretch of highway within a state
that communicates two or more states, are property belonging to the
nation. (i.e., of public domain), are for communal use and, by
constitutional provision, are exclusively subject to federal jurisdiction.
Additionally, the Court held that, in order for a highway to be
considered a general route of communication and, hence, for it to come
under the federal jurisdiction as the property of the nation, such
roadway must fulfill one of the conditions contemplated in section I of
Article 2 of the LCPAF. (i.e., that it connects with a road running into
a foreign country, that it connects two or more states of the federation,
or that it is constructed totally or basically by the federal government).
In the case at hand, the Court decided that the stretch of highway is of
a federal nature.
For these reasons, the Court, rejected the arguments of the
claimant that, in accordance with constitutional Article 132, the federal
government needs permission from the state legislature to have
jurisdiction and dominion over the section of highway in dispute, for
the latter does not come under the rules established in the above
constitutional provision. According to the Court, the requirement that
there should be consent from the State legislatures for the Federal
Powers to exercise jurisdiction over the property referred to in
constitutional Article 132, is to ensure respect among the various levels
of authority. Thus it does not suffice for the Federal Congress to establish
in the related law the circumstances or the property with respect to which
the Federal Powers may exercise jurisdiction and in what conditions,
but it is imperious for the state legislatures to give their consent when
the property is located on their territory —except for when by the
constitution establishes otherwise.
With respect to the consent referred to in the above constitutional
provision, the Court pointed out that this shows the will of the state
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legislature to allow or authorize the Federal Powers to exercise their
jurisdiction with respect to the real property mentioned in the precept.
Nevertheless, the consent of the legislatures is not required when
dealing with federal highways which, besides being property for
common use for public service, are the property of the nation and thus
not contemplated under the normative assumption established in
constitutional Article 132. As a matter of fact, elaborated the Court it
suffices for the above conditions to be proven for the Federal Powers
to exercise jurisdiction on the stretch of highway in question without
the need for the consent from the Congress of the State of Chihuahua.
In accordance with the above, the Court, indicated that, by having
demonstrated that the stretch of highway Parral-Jiménez is part of a
highway communicating several states and connecting with a foreign
road, it may be concluded that the Federal Powers are empowered to
exercise jurisdiction over such stretch of road. Thus, for the government
of the state of Chihuahua to exercise jurisdiction, a covenant executed
with the Federal Government to build, preserve, maintain, extend,
and exploit such stretch of road, in terms of the provisions of Article
116, section VII of the Federal Constitution is necessary. However,
the records disclosed no evidence that any covenants had been
executed between the federal government and the state of Chihuahua
to build, preserve, maintain, extend, and exploit the Parral-Jiménez
stretch of road.
In such circumstances, the Court acknowledged the validity of
official document number SCT.637.100.034/03.
141
The legislature of Nayarit has the powers to
establish the amounts whereby city councils
are exempted from the public bidding
procedures for the acquisition of goods and
services
Constitutional dispute 55/2003. Executive of the State of Nayarit.
March 15, 2005. Opinion delivered by Justice Margarita Beatriz
Luna Ramos.
The Governor of the State of Nayarit, filed a constitutional dispute
against Decree number 8485, issued by the congress of the state, which
contains all amendments to the Audit Agency Law and the State
Municipal Law. It considered that the Decree infringed Article 115,
sections II, and IV of the Federal Constitution. The bench of the
Supreme Court, after analyzing the claim, and based on Article 39 of
the related law (which empowers the Supreme Court to make an overall
examination of the reasoning of the parties in order to resolve the
issue in question), indicated that only the concepts of unconstitutionality
of Article 204 of the State Municipal Law were put forward. By amending
this law, it was argued that the state congress invaded the authority
related to internal revenue administration corresponding to the
municipalities. Therefore, the Supreme Court limited its decision to
that law.
The claimant, in putting forward its case, maintained that the state
congress has no power to set the amounts for which municipalities will
be exempt from the public bidding processes for the acquisition of goods
and services, considering instead that, in terms of Article 115, section
II, such power pertains to the municipalities. Thus the state congress is
exclusively empowered to establish relation to the municipalities the
taxes and income that are part of the municipal internal revenue, but
143
144
RELEVANT DECISIONS
not to decide on the use of municipal resources through annual decisions
of the amounts applicable in the above exceptions.
The Supreme Court, in resolving the dispute, looked to sections
II, and IV of Article 115 of the Federal Constitution and stipulated
that from these the following was evident: 1. The municipalities will
handle their estate in accordance with the law and will freely
administer their internal revenue; 2. The city councils will be
empowered to approve, in accordance with the municipal laws which
shall be enacted by state legislatures, all police corps and government
bodies, all regulations, circulars, and administrative provisions of
general observance within their corresponding jurisdictions, that
organize the municipal public administration, regulate on matters,
procedures, functions, and public services under their authority and
ensure citizen/neighbor involvement, and 3. The objective of the laws
issued by the state legislatures shall be, among others, to establish
the general basis for municipal public administration and procedure; the
procedure and conditions for the state government to assume a
function or municipal service, when, in absence of the appropriate
covenant, the state legislature considers that the corresponding
municipality is not able to exercise or render the same —prior request
by the corresponding City Council and with the approval of at least two
thirds of their members; as well as all provisions applicable in those
municipalities having no respective regulations.
Likewise, the Court looked to the introductory remarks to the
amendments to constitutional Article 115, issued on February 3, 1983,
and December 23, 1999, which make evident the intent to strengthen
municipal autonomy and explained the rule of the laws issued by the
state legislatures, in accordance with subsections a), b), c), d) and e)
of section II of Article 115 of the Federal Constitution. The Court also
cited considerations it set forth in resolving constitutional dispute 18/2001,68
with respect to the interpretation of the above law, in the sense that
the subsections of section II of Article 115 should be construed from a
restrictive point of view, in accordance wherewith those are the only
admissible interventions of the local legislation with respect to municipal
activity, thus respecting the principle of municipal autonomy.
In light of the above considerations, the Court, proceeded to analyze
Article 204 of the Municipal Law of the State of Nayarit —wherefrom it
68
Ib., v. XVII, May 2003, p. 898.
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appears that, in accordance with Article 133 of the Constitution of
the State of Nayarit, the local congress —through a decree issued
with that purpose— is to establish the amounts which city councils
shall be exempt from of public bidding processes on the acquisition
of goods and services. The Court determined that, from the systematic
analysis of Article 47, sections I and II, in relation with Article 133,
of the state constitution, it is clear that the state legislature has powers
to establish the amounts which city councils will be subject to in
exceptions to the public bidding processes on goods and services.
It therefore inferred that Article 204 of the Municipal Law does
not contravene any constitutional provisions whatsoever, but, on the
contrary, it ensures correct application of the law. Likewise, it held
that it does not limit free administration of the municipal internal
revenue (Article 115, section IV of the Federal Constitution), for it
does not intervene in the decisions relating to where, when and how
much to buy. Therefore, it declared the validity of the article whose
constitutionality was called to doubt. 69
69
Ruling P./J. 111/2005, ib., v. XXII, September 2005, p. 1159.
145
The Supreme Court rules in favor of nullifying
various electoral provisions in the State of
Veracruz
Unconstitutional dispute 3/2005. Partido de la Revolución Democrática.
March 17, 2005. Opinion delivered by Justice Genaro David Góngora
Pimentel.
The claimant argued that Article 83, paragraph four of the Electoral
Code for the State of Veracruz, violated Articles 41, section III, and
116, section IV, subsections b) and c), of the Federal Constitution,
among other matters. The Court, held that, with respect to the duties
of the local electoral authorities, Article 67, section I, subsections a)
and d) of the Constitution of Veracruz, provide that the organization,
development and monitoring of elections, plebiscites and referendums,
are a state duty, which must be fulfilled through the Veracruz Electoral
Institute. Likewise, the above legal provision provides that the highest
body of the Electoral Institute is the General Council. In addition,
paragraph four of Article 83 of the Electoral Code for the State of
Veracruz provides that, during non-election years, the General Council
must be made up of the representatives of the political parties and is
to be lead by the executive secretary. Each member of the Council
has a voice and a vote, will exercise the power described in sections
I, VI, VIII, XII, XIV, XXIX, XXXII and XXXIII, of Article 89 of the
Electoral Code.
The Court indicated that Article 83 of the Electoral Code for
Veracruz, in authorizing that the representatives of the authorized
political parties form a part of the General Council of the Veracruz
Electoral Institute, with a voice and a vote, permits the duties of the
147
148
RELEVANT DECISIONS
local electoral body to be influenced by party considerations, thereby
preventing objective and impartial decision-making. In addition, the
article in question does not especific how the members of that body
will be elected or the requirements and impediments existing in the
local Electoral Code to fill those positions. The Code automatically
makes the representatives of the political parties electoral counselors,
by authorizing them to become members of the General Council of the
local Electoral Institute with a voice and a vote, and to designate
the executive secretary, or president, of the above council. They are not
subject to any procedure and requirements provided for that purpose
in the Electoral Code of the state. Furthermore, the challenged law
does not specify what becomes of the original power held by the
representatives of the political parties and the executive secretary of
the General Council. The Court found that the challenged law
affects the principles of certainty, objectivity and impartiality of the
duties to be fulfilled by electoral bodies, with a resulting violation of
Article 116, section IV, subsections b) and c) of the Federal Constitution.70
The Court also analyzed sections I, VI, VIII, XII, XIV, XXIX, XXXII,
and XXXIII, of Article 89 of the Electoral Code for the State of Veracruz,
mentioned under Article 83 of the same ordinance and which sets the
attributions of the General Council of the Veracruz Electoral Institute
for the years when no electoral processes are held. By federal and
state constitutional mandate, the electoral authority is permanent in
nature. The Court indicated that the electoral process in Veracruz is
governed by Article 133 of the Electoral Code of that state. This legal
provision describes that the ordinary electoral process starts in January
and ends in October of election year for legislators and governor while,
for councilors, it starts in January and ends in November of the
corresponding year. Likewise, it indicated that the ordinary electoral
process comprises the stages of preliminary election acts, election day
and all post-election acts, and the results of the vote, whose term is
one year. In accordance with the challenged precept, only during that
term will the councilors carry out their electoral duties. Hence, it is
impossible for their activity at the Electoral Institute to be professionally
performed, for it is not continuous. (i.e., the tasks and duties performed
by the members of the local electoral body are not followed up and,
hence, their permanence is affected which, in turn, is detrimental to
the principles that are to be observed by the electoral bodies for
70
Ruling P./J. 35/2005, ib., v. XXI, May 2005, p. 903. See also thesis P. XVI/2005 on
page 905 of the same publication.
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149
fulfillment of the duties of that nature. Thus, the Supreme Court
declared the invalidity of Article 83, paragraph four, of the Electoral
Code for the State of Veracruz.
It also concluded that Article 88, paragraph one of the Electoral
Code for the State of Veracruz, violates Articles 41, section III,
paragraph two, and 116, section IV, subsections b) and c), of the Federal
Constitution, for it provides that electoral councilors occupy their
positions for the duration of the electoral process for which they were
appointed, which prevents their permanence. The Court pointed out
that, in Veracruz, the nature and purpose of the electoral process is
defined in Article 133 of the Electoral Code of that State. The Court,
found that in the state of Veracruz, the electoral process takes eleven
months, approximately, and only during this period do electoral
councilors occupy such positions. Therefore, it is impossible that their
activity at the Electoral Institute be professionally and permanently
performed. So Article 88, paragraph one of the Electoral Code for the
State of Veracruz, goes against the principles of professionalism,
permanence and independence that must govern the body in charge
of the organization, development, and monitoring of elections, and
this violates Article 116, section IV, subsections b) and c) of the Federal
Constitution. 71
In another vein, the claimant in the action argued that amendment
of Articles 3, section IV and 48, section I, subsection a), of the Judiciary
Law (both for the State of Veracruz)72 disregard Article 116, section
IV, subsections b), c) and d), of the Federal Constitution, for they
exclude the Supreme Court of the state from resolving disputes derived
as a result of elections relating to municipal officers and sub-officers. The
Supreme Court determined that because the election of municipal
officer and sub-officers is not an electoral process per se, the fact that
for the resolution of challenges arisen due to such elections the Electoral
Chamber of the State Supremem Court is excluded does not violate
the principles described in the above numeral. As a result, the validity
of Articles 3 and 48 of the Organic Law of the Judiciary of the state of
Veracruz was declared.
71
Ruling P./J. 34/2005, Semanario Judicial de la Federación y su Gaceta, Novena
Época, v. XXI, May 2005, p. 784.
72
Ruling P. XVII/2005, ib., p. 908.
The Supreme Court acknowledges the validity
of Article 32, paragraphs one and three of the
Constitution of Aguascalientes, whose amendments
are included in Decree number 101, issued by
the local congress and published in the Official
Gazette of the state on July 21, 2003
Constitutional dispute 78/2003. Executive of the State of Aguascalientes.
March 29, 2005. Opinion delivered by Justice Margarita Beatriz Luna
Ramos.
The matter of this constitutional dispute was the validity of amendment
to Article 32 of the Constitution of the State of Aguascalientes, issued
in the Official Gazette of the state on July 21, 2003. In the concepts of
unconstitutionality, it was argued that amendment to paragraphs one
and three of Article 32 of the local Constitution above, by empowering
the Congress of the State to order, motu proprio, enactment of a law
or decree in the event that the Executive fails to perform such act,
violates the principle of division of powers contemplated in Article
116 of the Federal Constitution, for the power to enact laws has been
entrusted to the Executive.
The principle of division of powers —in the local sphere— referred
to by the claimant is contemplated in Article 116 of the Federal
Constitution, and seeks to restrict and balance the public power to
prevent one of the Powers from being outdone by another. The Court
observed that this principle was also found in Article 14 of the
Constitution of Aguascalientes. In this case, said constitution adopted
a system of collaboration and coordination system between the powers
of the state, as appears under constitutional Articles 27 and 46. This
collaboration of powers cannot go as far as to have a public power
interfere in the running or decision of the power which it collaborates
with, to avoid that such interference does not annul or diminish the
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RELEVANT DECISIONS
principle of division of powers. Thus, it is valid for a law to establish
the collaboration of one or two powers in the function of another.
Nevertheless, this collaboration may not be such that the decision of
one of the collaborating powers may prevail over the decision of the
other, for that would infringe the principle of division of powers laid
down in Articles 49 and 116 of the Federal Constitution.
By analyzing amendments to paragraph one and three of Article
32 of the Constitution of Aguascalientes, the bench of the Supreme
Court, indicated that said provision makes it evident that, within
the execution of the legislative function, a means of collaboration is
contemplated for the state Executive. Such system consists of the right to
veto —represented by the Executive’s authority to make observations
to the laws or decrees issued by the local legislature. The new decree
must be approved by a qualified majority.
The Court warned that the challenged amendments set forth a
ten-working day term for the state governor to exercise his right to
veto. If he fails to do so, he must publish a law or decree sent to him.
The same ten-day term applies for the issuance of the law or decree
sent to the legislature after analyzing the observations of the Executive.
The amendments also provide that, in view of the failure to enact a
law, the Congress may order the governor to do so. In accordance
with the challenged constitutional provisions, the exercise of the right
to veto implies analysis of those observations by the local congress
which may or may not agree with the position of the Executive. after
this, approval of the law may no longer be subject to the observations
of the Executive, and it must necessarily be issued in the Official
Gazette of the State.
On the other hand, the Court, asserted that, in accordance with
section I of Article 27 of the local Constitution, the formal power to
legislate lies with the Congress of the state and, while Article 46, section
I of the Constitution grants the Executive the power to enact laws,
which implies a collaboration between the two powers, the power in
question, the last stage of the law creation procedure, cannot go as far
as to hinder the state’s legislative function through abstention or refusal
to perform the respective enactment.
The publication of laws —explained the Court— is conducive to
making the law compulsory and to making it known to those required
to comply with it. Thus, if enactment is not done by the state Executive,
this will lead to public affairs entrusted by the Constitution to the
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Legislative to become sterile for it would have no legal effect
whatsoever, thereby hindering one of the main functions of the
government, which is law creation.
The Court pointed out that Article 116 of the Federal Constitution
does not prevent the State Congress —through a reasonably balanced
system— from sharing the power of enactment of local laws,
considering also that the Constitution stipulates a wide decision-making
margin for states in this field. In such a sense, the concept of
unconstitutionaly defended by the claimant was deemed groundless
for, through the amendment to paragraphs one and three of Article 32
of the Constitution of Aguascalientes, the principle of division of powers
provided for in Article 116 of the Federal Constitution is not infringed.
The fact that the State Congress orders the enactment of laws or decrees
whenever the Executive fails to do so in the ten-day term above, does not
affect the system of powers provided for by the Constitution, for it
should be deemed that such measure has the purpose of preventing
stoppage of the legislative function. Thus, if the Executive decides to
refrain from exercising such constitutional power, only then may
congress determine enactment of the law. This measure neither implies
that one single branch exercises two or more Powers, as prescribed by
Article 116 of the Federal Constitution, rather it tends to balance the
process of creation of laws in the State.73
Lastly, the Court determined that amendment to paragraphs one
and three of Article 32 of the Constitution of the State of Aguascalientes
does not infringe the principle of constitutional supremacy provided for
in Article 133 of the Federal constitution, for it respects all provisions
therein inscribed.
73
153
Autonomous action to demand alimony is
admitted, notwithstanding the name assigned
to it and prior existence of a covenant executed in
such sense within a trial for divorce by mutual
consent
Resolution to Opposite Rulings 162/2004-PS. Between the First and
Second Collegiate Civil Courts of the Seventh Circuit. March 30, 2005.
Opinion delivered by Justice Sergio A. Valls Hernández.
By resolving direct amparo trials 68/2004, 1549/2002 and 164/2004,
as well as amparo under review 121/2004, the First Collegiate Civil
Court of the Seventh Circuit maintained the non-admissibility of payment
of alimony whenever the parties have previously, in a trial for divorce
by mutual consent, reached an agreement regarding alimony. It also
maintained that if claimant deemed that the provisions of such an
agreement were not in the claimant’s best interest, the claimant should
have sought an alimony increase or an action other than that taken.
Judicial action may only be sought when there is no express agreement
on this issue and whenever the party compelled to provide alimony
refuses to do so, or does so deficiently. For its part, upon deciding on
civil direct amparo 462/2004, the Second Collegiate Civil Court of the
Seventh Circuit was of the opinion that, whenever an agreement is
reached and then violated, the appropriate course of action is to honor
the agreement. Nevertheless, if claimants should opt for the pension
setting judicial action, non-admissibility may not be declared, under
the argument that compliance with the provisions of an agreement or
alimony increase should have been sought. In this case, the subsistence
of minors would be compromised while waiting for the respective Court
decision, and Article 4 of the Federal Constitution would be violated.
Moreover, according to Article 252 of the Civil Code of the State of
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RELEVANT DECISIONS
Veracruz [Código Civil del Estado de Veracruz (CCV)], by denying
the possibility to waive the right to receive food, the aim of the
legislator was for alimony agreements not to impede fulfillment of
this obligation, especially given that any delay in providing food as
a result of procedural or jurisdictional formalisms would compromise
the subsistence of helpless individuals.
The First Chamber of the Supreme Court indicated that there were
contradictory rulings around whether, in the case of alimony, execution
of the action to demand payment is admissible or not regardless of the
name given to the action by the claimant, or if enforcing performance
of the agreement is necessarily admissible, in view of the existence of a
prior alimony arrangement duly legalized before a Judge, by and between
the alimony debtor and the beneficiary’s representative, within an
uncontested divorce trial.
The First Chamber held that Article 252 of CCV provides that
the right to receive food is inalienable and cannot be the subject of
transaction. Article 2884 of the above code sets forth agreement may
only occur on the amounts due for food, by and between the alimony
beneficiary (or his or her representative) and the alimony debtor.
The existence of said agreement within a duly arbitrated uncontested
divorce trial represents no obstacle for the alimony beneficiary’s claim
from the debtor by means of an autonomous action given the alimony
payment legally required from the debtor. Although the related action
seeking compliance is valid in face of noncompliance with the
agreements, it would be absurd to condition the execution of such
action to a prior proceeding where other recourses or legal means of
defense are enforced. That would make inefficient the attention to
such a need, which involves the subsistence of an individual and,
for such priority considerations, the payment action would be
admissible at all times, regardless of the name given to it by the
claimant, and whether the action is derived from a divorce trial or
not. The alimony in question is not only valid as a derivation from
matrimony dissolution but is also an institution of family law which
thrives whenever all possibility-need requirements are met. Therefore,
if the provision is delayed due to procedural formalisms, the survival
of the beneficiary would be compromised. In such a case, it is the
judge’s responsibility to attend to the case for immediate compliance
of such a compelling need.
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157
The Court found that the above is consistent with the right to
access to effective judicial protection, as provided for in Article 17 of
the Federal Constitution. Said article would be violated by rendering
null the right of the alimony beneficiary to the resolution of the issue
at hand, going against the fundamental value represented by meeting
the need of minors. 74
74
Ruling 1a./J. 61/2005, ib., p. 11.
Article 693 of the Federal District Civil Procedures
Code, effective as of 2004, by establishing the
obligation for the appellant to bear all costs
related to the copies required to present related
testimony as a requirement for the admission
of the appeal, infringes Article 17 of the Federal
Constitution
Resolution to Opposite Rulings 160/2004-PS. Between the Eleventh
and Fourteenth Civil Collegiate Courts of the First Circuit. March 30,
2005. Opinion delivered by Justice José de Jesús Gudiño Pelayo.
The First Chamber of the Supreme Court determined that there were
contradictory rulings, for the Collegiate Courts involved (Eleventh and
Fourteen Civil Courts of the First Circuit) had ruled on essentially similar
legal matters, considering similar elements and deciding differently.
Indeed, the Eleventh Collegiate Civil Court of the First Circuit
asserted that issuance of all certified copies for filing a deposition for
the appeal is the responsibility of the bodies in charge of administering
justice, and must be free of charge. It is not to be imposed as a
requirement for the appellant to have the appeal admitted, neither
may payment be required for all necessary copies so as not to violate
the principle of access to justice. Thus the imposition of legal
expenses for the performance of those judicial acts is prohibited.
For its part, the Fourteenth Collegiate Civil Court of the First Circuit
maintained that payment for the copies necessary to present
deposition during the appeal by the appellant is a procedural
requirement that does not violate the principle of fair administration
of justice. Said payment constitutes litigation expenses and not the
imposition of constitutionally-prohibited legal expenses, and are
merely a procedural charge to be paid by the appellant for the filing
of an appeal.
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Therefore, the responsibility of the First Chamber was essentially
to establish whether Article 693 of the Code of Civil Procedures for
the Federal District (CPCDF) is contrary to the Federal Constitution.
It resolved that, from analysis of Article 693 of CPCDF, effective as of
2004, it is evident that whenever an appeal is filed, the appellant must
prove, the payment of all copies necessary to present the corresponding
deposition, and that such payment is an indispensable condition to
admit the appeal. The Chamber added that of such requirement translates
into legal expenses as prohibited under Article 17 of the Federal
Constitution, for the courts responsible for administering justice are
required to process such appeals as part of their work. Thus, the appeal
shall constitute an act inherent to the judicial duties of the courts
and shall not generate litigation expenses, for they do not represent a
new or separate case. Finally, the Chamber observed that because the
state covers all expenses occasioned by the performance of the courts
in administering justice free of charge, it results clear that the state
provides the budget to pay for all material and equipment necessary
for the duties of the courts.75
75
Ruling 1a./J. 60/2005, ib., p. 27.
Article 34, paragraph two, of the Federal Tax
Code, effective as of 2004, complies with
constitutional Article 8
Amparo under review 219/2005. Distribuidora Lozano Hermanos,
Sociedad Anónima de Capital Variable. March 30, 2005. Opinion
delivered by Justice Genaro David Góngora Pimentel.
The claimant argued that Article 34, paragraph two of the Federal Tax
Code [Código Fiscal de la Federación (CFF)], current as of 2004, violated
Article 8 of the Federal Constitution.
The Second Chamber of the Court indicated that, through a
decree published in the Federal Official Gazette on January 5th 2004,
paragraph two was added to Article 34 of the CFF. As a result, the tax
authorities "will not resolve" any inquiries on the interpretation or direct
application of the Federal Constitution, meaning that denial by
default as described in Article 37 of the very CFF is not admissible in
these cases. Likewise, it stated that a literal interpretation of this law
results in the tax authorities not being authorized to fail to respond to all
inquiries on the direct application of the Constitution, but prohibits
the same from "resolving" these types of inquiries —to be understood in
reference to the substance of the matter in question. Therefore, the law
in question must be interpreted in the sense that the tax authorities may
not issue pronouncements on the substance, implying the interpretation
or direct application of the Federal Constitution, without this authorizing
them to refrain from answering in writing and promptly to all inquiries.76
76
The amparo under review 219/2005 was the first of the five precedents which
made up ruling 2a./J. 107/2005, Semanario Judicial de la Federación y su Gaceta,
Novena Época, v. XXII, September 2005, p. 311.
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In this sense, the Chamber explained that according to the current
text of Article 34 above, in order to obtain a resolution regarding a
question of law resolution which, if favorable, generates rights for the
individual, the related inquiry must fulfill certain requirements, as
follows: a) relate to a real and concrete situation of the interested party,
individually; and b) not relate to the interpretation or direct application
of the Constitution. Thus to obtain a written answer from the tax
authorities, even if the inquiry does not meet all requirements necessary
to be resolved as to its substance, submitting such inquiry in writing,
in a peaceful manner, and with respect, as per constitutional Article 8,
will suffice.
The Court emphasized that the Chamber of Deputies, which
introduced the expression in the sense that the tax authorities "will not
resolve any inquiries" regarding the interpretation or direct application
of the Constitution, at all times admitted the need to respect the right
to petition. This corroborates that Article 34, paragraph two of CFF
may not be construed in the sense that the tax authorities shall refrain
from issuing any answers whatsoever to inquiries involving the
interpretation or direct application of the Constitution.
The Chamber added that denial by default is not admissible
(paragraph one of Article 37 of the CFF) when the inquiry relates to the
interpretation or direct application of the Constitution. Article 37 of
the CFF establishes that all tax inquiries shall be answered in a term
no longer than three months. Upon conclusion of such term, the interested
party may consider that the authority has resolved against it. This is
known as denial by default. The fact then that it does not operate in
relation to inquiries involving the interpretation or direct application
of the Federal Constitution does not violate constitutional Article 8.
If Article 34 of the CFF prohibits the tax authorities from issuing
pronouncements on the substance of such matters, there would be no
room for a tacit denial which would subsequently imply an adverse
resolution on the question of law. Moreover, the fact that the denial by
default does not operate does not mean that the tax authorities may
avoid issuing an answer.
In addition, the Second Chamber demonstrated the falseness in
the affirmation that Article 34 of the CFF allows the tax authorities to
issue answers that are incongruent with the petition where the situation
exposed is not finally resolved and results in specific legal consequences.
In that respect, the Court observed that the right to petition compels
the authorities to answer all petitions by citizens. Nevertheless, this
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163
does not imply an affirmative or favorable decision to the interests
of inquirer from the authorities. 77 Therefore, if direct control of
constitutionality is exclusive to the federal courts, it is clear that Article
34, paragraph two of the CFF, by establishing that the tax authorities
shall not resolve on inquiries pertaining to the interpretation or direct
application of the Constitution, does not prevent tax authorities from
answering in consistency with the petition, but solely reiterates the lack
of power of said authorities to exercise direct control over the Constitution.
Thus, a consistent answer, in such cases, will consist of the statement
of the impossibility of pronouncement on such topics.
77
Ruling 2a. LX/2005, ib., v. XXI, June 2005, p. 236.
Power of the Honor and Justice Commission
to decide on the dismissal of members of the
Federal Preventive Police due to unjustified
absences is ascertained
Resolution to Opposite Rulings 190/2004-SS. Between the Eighth,
Eleventh, and Fourteenth Administrative Collegiate Courts of the
First Circuit. March 30, 2005. Opinion delivered by Justice Margarita
Beatriz Luna Ramos.
In this case, the Second Chamber of the Supreme Court was required to
determine whether the Federal Preventive Police Civil has the power
competent to order the dismissal of members of that body due to
unjustified absences, thereby enforcing a "requirement of permanence"
in the institution.
The Chamber indicated that the regulation of the Federal Preventive
Police (LPFP) establish the possibility of examining on an ongoing
basis, whether they meet all requirements of permanence in the
institution. They also allow the evaluation of whether or not violations
to or noncompliance with duties described in the normative framework
are committed. The Federal Preventive Police Civil Service is the organ
responsible for examining all requirements of permanence of the
members of the organization, while the Commission of Honor and
Justice is in charge of stipulating all disciplinary procedures.
The Court resolved that the Federal Preventive Police Civil Service
Commission does not have the authority to order dismissal of officers
due to disciplinary faults committed in the fulfillment of their duties.
The requirements of permanence contained in Article 14 for the LPFP,
and the provisions contained in Title Four of its regulations ("Disciplinary
System"), contemplate that the Commission of Honor and Justice has
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the power to arbitrate such cases, because the dismissal or termination
retirement resolutions have great impact on the legal sphere of the
officer (recording of the sanction in the personal file).
Likewise, the Second Chamber determined that the Federal
Preventive Police Civil Service Commission does not have the authority
to order the dismissal of members of the institution due to unjustified
absences. Such cases pertain to the failure to observe the disciplinary
guidelines applicable to such members, which must be arbitrated
exclusively by the Commission of Honor and Justice, in terms of the
provisions — especially, Article 132— of Title Four of the Regulations
of the Federal Preventive Police. 78
78
APRIL
2005
University autonomy may only be granted
through a formal legislative act to public
universities
Constitutional Dispute 103/2003. Federal Executive. April 4, 2005.
Opinion delivered by Justice Juan Díaz Romero.
The President opposed Articles 46 Bis and Ter of the State of San Luis
Potosí Public Education Law, as well as the resolution whereby
autonomous status is granted to the Open University as a civil corporation,
via a decree issued by the Governor of the State of San Luis Potosí
on September 22, 2003, and published in the local Official Gazette on
September 23rd of the same year. It was argued that these laws violated
Article 3, sections VI, VII and VIII, and Article 73, section XXV, of
the Federal Constitution, given that university autonomy can only be
granted by means of a formal legislative act, and only in favor of public
universities.
In relation to the issues raised, it was argued that the aforementioned
articles in the State of San Luis Potosí Public Education Law, by
contemplating that private universities or advanced education
institutions can acquire independent status, violate Articles 3, sections
IV, VII, and VIII, as well as Article 73, section XXV, of the Federal
Constitution. The aforementioned constitutional articles establish that
it is the State’s responsibility to regulate and attend to all educational
types and modalities, including higher education, allowing individuals
to impart education with the authorization of the State, who is
responsible for granting and withdrawing recognition of official validity
of studies imparted at such educational establishments. This, in turn,
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implies that the Constitution has established two regimes for the
rendering of the public education service: a) the public system, under
the charge of the government (Federal, States, Federal District, and
Municipalities); and b) the private system, whose official validity is
subject to recognition granted or withdrawn by the State. It was also
argued that, in accordance with section IV of constitutional Article 3,
in relation to the operation of private universities, the State is limited
to granting recognition of official validity to the studies imparted at
such institutions since, by nature, they enjoy total autonomy and are
at liberty to determine their own plans or programs, establish entry
requirements, promotion, and permanence of academic personnel,
and to manage their respective patrimony, requiring a formal legislative
act to grant autonomy to the university, in accordance with section VII
of Article 3 of the Federal Constitution. This makes the institution in
question a decentralized body, meaning that labor relations with its
workers are to be regulated in accordance with section A of
constitutional Article 123.
It was also argued that the Federal Congress, in exercise of its
authority conferred by the aforementioned constitutional provisions,
issued the General Education Law, which does not contemplate the
university autonomy regime in favor of private educational institutions,
and only grants the right to official validation of the studies imparted by
such institutions.
Firstly, the bench of the Supreme Court analyzed the unconstitutionality
related to the allegation that the laws in question violate section VII of
constitutional Article 3 by establishing that the Executive of the State is
responsible for granting autonomy to advanced education institutions
through the issuance of a decree. The Court indicated that the recognition
of autonomy alluded to in section VII of constitutional Article 3 is derived
from the reform published in the Federal Official Gazette on June 9,
1980. Historically the possibility of making universities and advanced
education institutions autonomous was raised to the category of a
constitutional norm as regards the National Autonomous University of
Mexico (UNAM) as a result of the 1929 student movement, which brought
on the issuance of various statutory laws —the last in 1945 before the
latest constitutional reform of 1980.
In any case the analysis of section VII of constitutional Article 3
indicates that the law recognized the existence of independent
universities; nevertheless, since the aforementioned constitutional
reform of 1980, this recognition is subject to a reservation whereby
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autonomy is granted by means of a formal legislative act. Thus it was
clear that the intention of the law, when granting autonomy to a
university or advanced education institution, was that such recognition
should come from a formal legislative act, that is to say, a statutory
law issued by the Federal Congress or the State Legislatures.79
On the other hand, the Court analyzed the consitutionality of
Articles 46 Bis and 46 Ter of the State of San Luis Potosí Public
Education Law. These provisions indicated that the advanced education
institutions that had been granted recognition of official validity of
studies by the State of San Luis Potosí would be granted the status
of autonomous advanced educational institutions. Moreover, for these
institutions to have university autonomy, they are also required to show,
among other things, that their educational personnel have the required
scientific or technological studies and background, as well as that the
institution has suitable premises, facilities, equipment, and laboratories.
Once the legal requirements have been met, the governor will be responsible
for recognizing the independent status of the advanced education
institutions by means of a decree. The universities that gained their
autonomy in accordance with the aforementioned legal dispositions
enjoy total academic and administrative freedom, the studies they
impart will be officially validated, and the degrees they issue will be
registered once they fulfill the requirements of the prescribed federal
law governing the exercise of professions. Finally, university autonomy
may only be revoked by order of the governor whenever the respective
institution has failed to fulfill the conditions and obligations imposed in
the applicable legislation.
The Court reasoned that, according to Article 46 Bis of the State
of San Luis Potosí Public Education Law, once certain requirements
were met, the advanced education institutions will be able to acquire
autonomy status, to be granted through a decree issued by the State
Executive. He or she will have the power to revoke such autonomy in
case the related institution fails to fulfill the conditions and obligations
imposed in the applicable legislation. Thus the Court concluded that
the article in question violates section VII of constitutional Article 3 by
permitting the autonomy of an advanced education institution to come
from a decree issued by the governor, consequently violating the express
reservation of law contemplated in the aforementioned constitutional
provision.
79
Ruling P./J. 17/2005, ib., May 2005, p. 913.
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The Court considered that this nullity should extend to Article 46
Ter of the State of San Luis Potosí Public Education Law, considering
that the aforementioned rule establishes various powers conferred in
favor of the advanced education institutions granted autonomy under
such laws, including the institutions granted autonomy by means of a
decree issued by the state governor, which violates the express reservation
contemplated in section VII of constitutional Article 3.80
Therefore, the Court declared well-founded the concepts of nullity
claimed by the plaintiff against the Articles 46 Bis and 46 Ter of the
State of San Luis Potosí Public Education Law, as well as the motives
for opposition regarding the act in question attributable to the Governor
of the State of San Luis Potosí, consisting of issuing the decree whereby
autonomous status is granted to the Open University as a civil
corporation, dated September 22, 2003, and published the following
day in the Official Gazette. Said autonomy was granted in terms of Articles
46 Bis and 46 Ter of the State of San Luis Potosí Public Education Law
and was therefore not conferred by means of a formal legislative act
but by means of decree issued by the Governor.
As far as the scope and effects of the declaration of nullity
were concerned, the Court resolved that these had to be general,
consisting of declaring the nullity of Articles 46 Bis and 46 Ter of the
State of San Luis Potosí Public Education Law and of the decree by
means of which the Open University is granted autonomous status as
a civil corporation.
80
Ruling P./J. 18/2005, ib.
In the direct amparo under examination, charges
aimed at proving the unconstitutionality of
the provisions applied in the decision may be
made notwithstanding the existence of a
previous direct amparo
Direct Amparo under review 166/2005. Casa de Bolsa BBVA Bancomer,
S.A. de C.V., Grupo Financiero BBVA Bancomer. April 6, 2005. Opinion
delivered by Justice José de Jesús Gudiño Pelayo.
Claimant filed prior direct amparo proceedings to appeal a sentence
in a case where Article 199 of the Federal Tax Code (CFF) was applied.
In that amparo, constitutional protection was granted, and the Court
declared void the sentence in question. In the first amparo, the claimant
argued that the lower Court, upon resolving the case did not examine
certain issues in declaring the illegality of the sentence in dispute. The
lower Court declared that the concept of violation was valid, for
the alleged sentence violated the guaranty of full justice, yet it failed to
study the rest of the issues raised in the amparo proceedings (including
those referring to the supposed unconstitutionality of Article 199 of
CFF). In compliance with the interlocutory sentence, the lower Court
issued a new sentence, where it studied all issues raised by the claimant.
The new sentence was unfavorable for the claimant, and was again
challenged through a direct amparo whereby claimant raised matters
of violation of constitutionality and legality. The lower Court expressly
examined and disavowed these. An appeal was filed with the Supreme
Court, which was required to resolve the following: Firstly, whether
through this type of review of a direct amparo sentence, an analysis of
issues of constitutionality raised by appellant is feasible, where the
constitutional article whose observance is called to doubt was decided
in the first direct amparo and, secondly, whether the claimant was
required to file for a review of the the original amparo sentence when
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the lower Cour t failed to decide on the issue related to the
unconstitutionality of Article 199 of CFF.
The Court resolved that it is possible to examine the issues of
unconstitutionality via this channel and that the claimant was not
compelled to file for a review on the previous occasion. In the
judgment of the Court, even though the claimant raised the issue of
a violation of the right to full justice, the lower Court did not exhaust
the study of all matters raised. In such sense, if the sentence issued
in the direct amparo in question had no legal effect whatsoever —by
not resolving all issues fully— it was clear to the Court that the claimant
could not be blamed for not having challenged the unconstitutionality
of those laws applied in said resolution for, had such matter been
raised, it would have not been matter for study in the respective trial.
The appellant claimed that the lower Court did not study the
matter in question effectively and reiterated his claim that Article 199
of the CFF violates the due process guarantees and right to access to
justice granted by Articles 14 and 17 of the Federal Constitution.
In the cited law, the federal legislator established for the petitioner the
opportunity to clarify formal errors.
The Supreme Court considered such allegations groundless.
It was false that in the specific case of the claimant, confusion would
have existed as to who the petitioner was —as claimed by appellant
in his grievances. The Court observed that the petitioner was not the
person that signed the action, but the legal representative. The Court
determined that Article 199 of the CFF does not violate the guarantees
of hearing, defense and respect for the essential formalities of procedure
and due process. Although it does require that a signature be on the
Court document, related legislation (Article 242 of the CFF) establishes
a means of appealing.
The Court determined that protection of such rights must not
necessarily be prior, through an injunction or summons for, although
the Constitution, in paragraph three of Article 14, provides that no
person may be deprived of life, freedom, or property, possessions, or
rights, except through a trial with the previously established courts
meeting all essential formalities of the procedure and in accordance
with the laws issued previously to the fact, that does not determine that
before making any judicial determination affecting suspect, the latter
must necessarily be heard previously.
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The First Chamber agreed that among the essential formalities
of trial procedure is that wich requires that prior to disavowing or
disowning an action, when it contains irregularities, the party must
be allowed to rectify them. It warned, though, that this is only feasible
in the presence of "rectifiable irregularities".
In another vein, the First Chamber accepted that constitutional
Article 17 may be violated by laws imposing requirements that impede
or block access to the courts, if such obstacles prove unnecessary,
excessive and lack fairness or proportionality with respect to the ends
pursued by the legislator. Nevertheless, not every requirement for access
to the courts is unconstitutional, as is the case of those that, while
respecting this fundamental right, tend to preserve other rights, property
or interests protected by the constitution, and are adequate and
proportional in pursuing their aim, as is the case of compliance with
legal terms, exhausting all prior channels before seeking a trial, etc.
Thus the obligation implicitly contained in Article 199 of CFF, requiring
that, in order to activate the contentious-administrative justice
apparatus, the Court document is signed by the actual filing party
(except for the exceptions therein set forth), is valid. In this case it was
demonstrated that the person filing the suit was not the signer of the
document, but the legal representative of the company. The requirement
that, in order to file a legal action, the document should be signed
by the actual petitioner, is a formality that may not be labeled as an
obstacle preventing access to justice, nor does it prove unnecessary,
excessive, unreasonable or lacking of propor tionality. Instead
—concluded the First Chamber—, it is fully in line with the objectives
sought by the Constitution. For a person to exercise the right to
justices they must personally file the case. If they openly express their
will to, they will precisely, set in motion the justice apparatus.
The inspection powers of the Auditor General
are governed by the principle of yearly income
and are limited to the financial administration
of the inspected agency
Constitutional Dispute 61/2004. Federal Executive. April 12, 2005.
Opinion delivered by Justice Juan Díaz Romero.
The constitutional dispute was filed by the Secretary of Energy, on
behalf of the President of the Republic, claiming the invalidity of actions
taken by the Auditor General [Auditoría Superior de la Federación
(ASF)]. It was argued that the Auditor General’s actions violated Articles
14, 16, 49, 74, 79, 89, 90, 94, 103, 105, and 107 of the Federal
Constitution, for its resolutions are one-sided and coercive, and infringe
upon the powers of the President. Thus the bench of the Supreme
Court defined the limits to the powers of the entity charged with
supervising the financial administration of federal agencies.
Firstly the Court inferred that constitutional Articles 74 and 79
make it evident that an audit of public accounts is limited by the
principle of yearly income, meaning that the audit is limited to
the appropriate tax and other expensescorresponding to that year. 81
In addition, the Court observed that, in accordance with the
constitutional system in effect as of 1999, the powers of the ASF
—then known as Contaduría Mayor de Hacienda— were modified.
From that moment it acquired powers that go beyond the review of
the public accounts, but said powers are to be interpreted according
81
Ruling P. XXX/2005, ib., v. XXII, August 2005, p. 889.
175
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RELEVANT DECISIONS
to the constitutional framework wherefrom the nature of the monitoring
duty of the auditing body are derived —specifically, in Article 74,
sections II and IV of the Federal Constitution.82
Based on the above considerations, and the principle of division
of powers —found in Article 49 of the Federal Constitution—, the Court
determined that the ASF enjoys full autonomy to issue the observations
and recommendations deemed advisable —even those that are binding
in nature— and that it also has powers to impose administrative, tort
or criminal responsibilities. Nevertheless, it considered that the law
delimits the subject of the monitoring power to the review of public
accounts, and to financial administration aspects. This shall be
understood as the activity of the powers of the federal government
and the public agencies, with respect to the administration, handling,
custody and application of all income, expenses, funds, and, in general,
of the public resources used for the execution of the objectives
contained in the approved federal programs. 83
Lastly, the Court deemed that the fact that Article 14, section VII
of the Superior Audit Law of the Federation sets forth that higher review
and supervision of public accounts is intended, among others, to
determine whether internal revenue, administration, handling and
application of federal resources, and all acts, agreements, covenants,
concessions or operations held or made by the supervised entities, are
legal and whether damages have not been inflicted against the State
in its public moneys or to the estate of federal public entities, does not
imply that ASF is empowered to evaluate the legality of all acts. This
would exceed the powers conferred by the provisions of Articles 74
and 79 of the Federal Constitution, where the purpose and scope of
the review of the public account is specified.84
82
83
84
Ruling P. XXVI/2005, ib., July 2005, p. 919.
Ruling P. XXVII/2005, ib., p. 799.
Ruling P. XXV/2005, ib.
At the contentious administrative proceeding,
notification of the decision granting a 5-day term
to bring forth allegations in writing, shall be made to
the parties in the form of a posting—including all
administrative authorities involved, in terms of
Article 235, paragraph one, of the Federal Tax Code
and Seventh Administrative Collegiate Courts of the First Circuit.
April 15, 2005. Opinion delivered by Justice Sergio Salvador Aguirre
Anguiano.
In this case, there existed contradictory rulings, for the Second and
Seventh Administrative Collegiate Courts of the First Circuit had ruled
on materially equal legal matters. The issue was whether the
agreement whereby the parties are granted the appropriate legal term
to present arguments must be personally notified to all administrative
authorities, in the terms of Article 254 of the Federal Tax Code [Código
Fiscal de la Federación (CFF)], or can be announced and published
through a posting, in accordance with precept 235 of the same ordinance.
Upon resolution, the courts above reached different conclusions.
The Second Collegiate Administrative Court of the First Circuit
deemed that the order issuing the term to bring arguments shall be
notified personally to the sued authorities regardless of the fact that
Article 235 of the CFF (current as of 2002), establishes in general
terms parties be notified via a posting. In turn, the Seventh Collegiate
Administrative Court of the First Circuit ruled that the lower Court Judge
had proceeded correctly in notifying through a list or posting the parties
of the agreement whereby the five-day term to bring arguments was
granted, for this is in observance of the provisions in Article 235 above.
The Second Chamber deemed that Article 235, paragraph one
of the CFF, upon establishing that in an contentious-administrative trial,
177
178
RELEVANT DECISIONS
the 5-day term to bring arguments in writing shall be notified in the
form of posting or list, constitutes a special precept, for, given that it is
the only precept conforming Chapter VIII —"Instruction Closing"—,
it is evident that it was created to regulate such procedural phase.
Moreover, the objective is to provide promptness to the procedure so
that tax justice be prompt, complete, and impartial, in terms of Article
17 of the Federal Constitution. In addition, Article 254, paragraph
one of CFF provides the general rule that all notifications to be made
to the administrative authorities shall always be made personally, and
when dealing with urgent cases, by telegraph. Thus, in attention to
the principle that a special norms prevails over a general precept, the
Second Chamber found that Article 235 above should prevail over
Article 254. Hence notification of the order granting the above term
is to be made by posting the notice for the parties —including to the
administrative authorities, for they are parties to the trial in terms of
Article 198 of the above ordinance. Furthermore —elaborated the
Second Chamber— considering that the general rule included in
the above Article 254 was issued in a decree published in the Federal
Official Gazette dated December 31, 1981, and that the special rule
provided for in Article 235 was published on January 5, 1988, it is
evident that the latter is a succession of the former. Thus, considering
the above criterion of specialty and to the chronological principle, the
special precept limited the field of application of the general norm for
all notifications, allowing the posting of said notification whereby the
parties are granted 5-day terms to bring arguments in writing. 85
85
Ruling 2a./J. 55/2005, ib., v. XXI, May 2005, p. 477.
The bench of the Court upheld the
constitutionality of various ar ticles from
the State of Nayarit Law of the Auditor General
Constitutional Dispute 52/2003. Governor of the State of Nayarit.
April 18, 2005. Opinion delivered by Justice Sergio Salvador Aguirre
Anguiano.
Claimant sought the invalidity of Articles 6, paragraph two, 7, sections
XI and XIX, 7 bis, 11, sections IV, IX, XIII, and XXIV, 19, 37, 38,
section II, 50, 51, 54, sections I and IV, of the Law of the Auditor
General of the State of Nayarit, publishes, through decree number
8485, on Wednesday, 4 June, 2003 in the Official Gazette of the State
of Nayarit.
The bench of the Supreme Court indicated that Article 7, section
XI of the challenged law —which provides that if the law does not
establish a term to remit the information requested by the supervision
agency and the latter makes the related determination based on the
nature of the request, does not violate Article 16 of the Federal Constitution.
Article 7 grants the aforementioned agency a discretional power whose
exercise must be duly grounded and motivated. Furthermore, the
article in question, by granting the audited entity the possibility of
requesting in writing prior to maturity of the above term, an extension
of the latter for the delivery of information, creates certainty of
appropriate compliance.
As to the powers that Article 7, section XIX of the law of the
Auditor General of the State of Nayarit provides to this body, in issuing
certifications of the documents filed in their records and those of the
agencies it supervises, the Court resolved that neither do they invade
179
180
RELEVANT DECISIONS
the sphere of power of the governor, nor can they be deemed excessive.
This is because, on the one hand, such power includes the
authentication of its own documentation (i.e. which it generates) in its
capacity as a state body, and that filed in records through the exercise
of monitoring duties. On the other hand, the power to certify documents
issued by other bodies is a power that allows it to perform its duties,
and such power is to be understood as restricted to documents relating
to the auditing activity. This implies that, under no circumstances may
the above body certify any documents whatsoever outside such activity,
or may it disclose such documents to third parties. The bench of the
Supreme Court found that the powers conferred to the State Auditor
General in no way limits the authority ascribed by the law to the
organizations of the State Executive.86
In addition, Article 7 bis, subsection a) of the law above (which
provides that the Auditor General of the State of Nayarit can apply
the sanctions as a compelling means to enforce fulfillment of its
decisions), in the judgment of the Court, in plenary, proved to be
respectful of the hearing guaranty provided in Article 14 of the Federal
Constitution. Prior to imposing a sanction, such body is required to
hear the allegedly guilty party to consider its financial status, the
seriousness of the offense, its hierarchical level, and the need to avoid
practices that contravene the contested law. In turn, the affected public
officer shall enjoy an expeditious right to, if applicable, challenge the
sanction through the appropriate legal means. 87
Article 7 bis, subsection b) of the cited law, by contemplating
that the Auditor General of the State of Nayarit may, if applicable, file
with the appropriate authorities for the removal of the responsible public
officer as a means of compelling the enforcement of its determinations,
does not violate the hearing and legality guarantees found in Articles
14 and 16 of the Federal Constitution. The aforementioned body will
only promote such an action before the appropriate authority, and the
latter shall process and resolve said removal by following the essential
formalities of procedure and providing the aggrieved party with the
opportunity to raise defensive arguments. 88
In addition, the Court, recalled that the person-specific laws
prohibited by constitutional Article 13, are those that were passed to
86
87
88
Ruling P. XXXI/2005, ib., p. 1434.
Ruling P./J. 92/2005, ib., p. 1435.
Ruling P./J. 93/2005, ib., p. 1436.
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persecute a specific individual, which are illegal when applied to
the person it was intended to persecute. The Court found that Article
19 of the Law of the Auditor General of the State of Nayarit —which
establishes that, in the year following the year end closing, the general
auditor cannot fill a local elected position, or perform any job, task or
commission within any of the entities or dependencies pertaining to
the agencies being audited— does not constitute a person-specific law
for, by being aimed at the individual who will fills this position, it cannot
be construed as aimed at a specific person, nor can it be considered
that subjective criteria were used to determine the person to be
persecuted. 89
In another vein, the Court asserted that Article 54, section I of
the Law of the Auditor General of the State of Nayarit, by contemplating
that the latter may determine violations of duty, the suspects, the
amount of damages and all compensation and monetary sanctions as
appropriate, does not violate Article 19, paragraph one, 21, paragraph
one, and 102, subsection A, paragraph two of the Federal Constitution.
The above section refers to the restituting responsibility of public officers
that cause damages to the public monies of the supervised agencies,
and not to criminal liability. Indeed, the Court found that such
constitutional provisions establishe a series of guarantees to be enjoyed
by the party allegedly responsible for the offense. All arrests made
may not exceed seventy-two hours without a justification through an order
for imprisonment where, among others, all elements conducive to
establishing the existence of corpus delicti and potential responsibility
are expressed. In addition, the investigation and prosecution of crimes
is the responsibility of the prosecuting authorities, as is the responsibility
to request warrants for arrest against suspects, to seek and file evidence
accrediting suspect liability, and the trials. This rights are not applicable
to the above restituting responsibility.90
89
90
Ruling P./J. 94/2005, ib., p. 1437.
Ruling P./J. 95/2005, ib.
181
The constitutionality of the decree amending
and adding various articles to the Constitution
of the State of Jalisco is upheld
Constitutional dispute 87/2003. Municipality of Guadalajara, State
of Jalisco. April 21, 2005. Opinion delivered by Justice José de
Jesús Gudiño Pelayo. Reporter of clause ten, approved by majority
Justice Guillermo I. Ortiz Mayagoitia.
The municipality of Guadalajara claimed the unconstitutionality of
decree 19,986 issued by the Congress of the State of Jalisco, which
contains amendments to Articles 33, paragraph seven; 35, sections IV,
XXIV, and XXV, 89, 97, section I, and 100, paragraph one, and added
an eighth paragraph to Article 33 of the Constitution of the State.
This amendment was argued to be in violation of Article 117 of the
State Constitution since it had not received a favorable vote from two
thirds of the total members of the Legislature. It was also argued that
the amendments violated the principles established in Article 115 of the
Federal Constitution, in relation with Article 133. In addition the municipality
claimed that the amendments infringed the principle of municipal
autonomy set forth by the Federal Constitution. The unconstitutionality
of Articles 35 and 89 was based on the fact that they gave power to
examine and supervise all municipal public accounts to the Auditor
General of the State of Jalisco. This was considered to entail undue
delegation of the above power by the Congress of the State, for
constitutional Article 115, section IV, makes evident that it is the
responsibility of legislatures to examine and supervise all municipal
public accounts. Finally, the unconstitutionality of subsection a), section
XXV of Article 35 of the Constitution of Jalisco was also alleged, which
confers the Auditor General of the State of Jalisco powers that are
claimed to be invasive of the sphere of powers of the Chamber of
183
184
RELEVANT DECISIONS
Deputies of the Federal Congress, as established under Article 79 of
the Constitution, which grants the Auditor General of the Nation the
power to supervise "all federal resources exercised by the federal
entities, municipalities and private parties."
Firstly, the Supreme Court determined that the amendment was
not without vices in its legislative procedures. While the ordinary session
records of the Congress of Jalisco dated May 8, 2003 indicated that
the decree resolution for constitutional amendment was voted on by
all 38 deputies in attendance, given that the Congress of the State is
comprised of 40 deputies, it was evident that the amendment had met
all requirements under Article 117 of the State Constitution —in
accordance to which all amendments to the latter must be approved
by two thirds of the members of the House based on the latter—, for
its approval by "absolute majority" had been no more than a procedural
erratum, which did not analize into the contents and validity of the
Provisions. 91
As to the fact that the amendments to the Jalisco Constitution
contradicted constitutional Article 115 —specifically, as of the reform
dated 1999— the bench of the Supreme Court determined that the
challenged law empowers the auditing body to conduct not a political
review of municipal plans and programs, and much less still does it
grant the powers to define or amend the same. With regard to the
municipalities, the Law of Government and Municipal Public
Administration establishes guidelines and criteria for the municipal
budget; yet, it entrusts the related City Council with preparation of the
same. Also, in the case of the Planning Law of the State of Jalisco and
its Municipalities, by regulating municipal development, it is established
that the derived plan and programs shall be the basis for the preparation
of its budget project. The Municipal Internal Revenue Law sets forth
that the expense budget shall be prepared based on programs indicating
objectives, goals, and units responsible for their execution —translated
into budgetary items. In the same vein, the General Audit Law for the
State of Jalisco refers to programs such as "those prepared in
accordance with the provisions of the Planning Law of the State of
Jalisco and its Municipalities". In this context, the Court pointed out
that, if the legislation under challenge sets forth that within review of
the public account "verification of adjustment to the criteria indicated
in the budget and fulfillment of all objectives contained in the programs"
91
Cfr. Ruling P./J. 94/2001, ib., v. XIV, August 2001, p. 438.
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is required, this should not be understood as empowering the
auditors to review the very contents of the programs, or to even
issue an opinion on the same. It only indicates the basis on which
determination regarding whether the use of resources reflected in
the municipal public account is in accordance with the provisions
of the municipal budget —and the plans and programs therein
contained— is to be made. 92
On the other hand, the Court held that no delegations or
transfers whatsoever of the authority granted by the constitution to
the legislature existed via the review of municipal public accounts
by the Auditor General of the State. In fact, while the legal nature of
the Auditor General lacked express definition in the Jalisco Constitution,
it is a body created by the local congress, whose duties consist of
providing the latter with technical support for supervision and review
of public accounts.
The Court also disagreed with the claimant municipality by
clarifying that the Auditor General of the State of Jalisco is not an
intermediary authority between the local government and municipalities,
for it does not represent an entity outside that government, but a body
incorporated into the structure of the legislature that does not replace
or interfere with duties pertaining to municipalities. Revision of their
public account is the responsibility of the legislative power of the State.
Also, the Court warned that there was no legal basis for implying that
this creates an impediment to any potential communication or direct
relationship between the congress and the municipalities. That is, the
duties of the Auditor do not empower it to act over the local congress
—which has the ultimate power of decision on the matter. Indeed, all
powers attributed by section XXV of Article 35 of the Constitution of
Jalisco to the above audit may only be understood in reference to its
function of assisting the State Legislature.93
With respect to whether the Auditor General of the state
misappropriated powers to the detriment of the Federal Auditor
General, the Court deemed that not only does the Federal Constitution
allow the legislatures to supervise municipal public accounts but, in
fact, expressly empowers them to do so. Indeed, the Court indicated
that the current second to last paragraph of section IV of Article 115
92
93
Ruling P./J. 90/2005, ib., p. 800.
185
186
RELEVANT DECISIONS
of the Federal Constitution implies that reviewing all municipal public
accounts is the responsibility of the legislatures. This is done through
the Auditor General of the State —a technical, specialized body
within the Congress of the State of Jalisco, which receives these
powers from the local Constitution. Therefore, the Court observed that
challenged Article 35, section XXV, subsection a), by indicating that the
Auditor General of Jalisco will be responsible for the supervision of
all income and expenses, as well as the handling and use of all
municipal funds and resources, including the use of federal resources,
provided they are part of the appropriate municipal public account,
adheres to the above constitutional supervision system —in regard
to the fact that all municipal public account components shall be
supervised by the state legislatures—. It also supplements and clarifies
by specifying that supervision includes all federal resources coming
in to the above accounts.
In this vein, the Court concluded that, when Article 79, section I,
paragraph two of the Federal Constitution, grants the Federal Auditor
General powers to supervise federal resources used by municipalities,
it is actually establishing a concurrent authority regime for supervision
of all federal resources in such a way as to ensure that power is exercised
both by legislatures —in relation to public accounts— and the Federal
Auditor General —for other purposes.94
Thus, elaborated the Court, if it is to be considered that only the
Federal Auditor General is responsible for supervision of federal resources
used by municipalities, there is a risk of preventing all functions by the
former by compelling it to review of all municipal accounts as regards
federal funds. This would result in faulty revision for, other than the
problems arising from segregation of supervision of the same public
account, in Mexico there are currently 2,435 municipalities, and there is
a possibility neither said authority, nor any other, might currently have
the capacity and necessary resources to review punctually and timely the
yearly public accounts of all municipalities.
As a result, the Supreme Court declared the validity of Articles 33,
paragraph seven; 35, sections IV, XXIV, and XXV; 89, 97, section I;
100, paragraph one, and added paragraph eight of Article 33 of the
Constitution of the State of Jalisco, as per the text recorded in decree
19,986, amending the same.
94
Ruling P. XXXVI/2005, ib., August 2005, p. 1139.
Article 109, Section XXVIII of the Mexican Income
Tax Law, effective as of 2003, by excluding
the exemption for authors handing over their
works to a third party for dissemination in
the form of movies, radio, theater, and TV,
encroaches the principle of tax equality
Amparo under review 425/2005. April 29, 2005. Opinion delivered
by Justice Sergio Salvador Aguirre Anguiano.
In the case at hand, the Second Chamber of the Supreme Court decided
with respect to the unconstitutionality of Article 109, section XXVIII,
of the Mexican Income Tax Law (LISR) for 2002. The Court indicated
that Article 109, section XXVIII, of the LISR, establishes an exemption
from income tax payment in favor of taxpayers whose annual income
is equal to up to 2 minimum wages for their respective geographic
areas, by way of copyright, when they allow third parties to publish
works of their own creation in the form of books, newspapers, and
magazines, or the reproduction in a series of musical works also of their
creation, and whenever the publisher of such works does so for
purposes of sale to the public provided the author issues in return
for such income the related receipts bearing the indicated inscription.
Moreover, the law in question establishes that the excess income derived
from copyright with respect to the aforementioned two minimum wages
must be taxed in terms of the numeral.
For the Second Chamber, the contents and configuration of the
law in question shows the creation of an income tax payment exception
for persons involved in activities conducive to promoting culture.
It added that the legislature, when establishing this exemption, based
himself on the criterion that the above norm is conducive to realizing
the cultural content of the Federal Constitution, that bears relation to
187
188
RELEVANT DECISIONS
the set of norms or guidelines corresponding to the identity and aims
of the social unit implied by the State. In the opinion of the Second
Chamber, in the constitutional democratic State, the citizens and people
represent the "anthropological and cultural premise" of the legal order.
Thus, the Constitution is constituted not only as a norm but also as an
expression of a cultural situation, an instrument of self-representation
of the citizens, an image of their cultural heritage and as a foundation for
their aspirations.
The Chamber added that the contents of Articles 7, 25, and 26
of the Constitution indicates that the State must guarantee and promote
the free issuance, reception, and circulation of cultural information,
taken to include the diffusion of the values of popular tradition and the
work of artists, writers and scientists of the country. Thus, on the one
hand and from a positive perspective, the State must promote cultural
diffusion and guarantee its transmission to future generations and, on
the other and from a negative perspective, must abstain from
influencing the process of obtaining and free transmission of scientific
and cultural knowledge.
However —the Second Chamber abounded—, full effectiveness
of fundamental rights requires them to be conceived as a system of
objective values equipped with a unity of sense, which imposes its
interdependence or mutual implication. Thus, the promotion of the
creation of works to be diffused to the public fosters the conservation,
development, and diffusion of science and culture while simultaneously
contributing to the development of the personality of the members of
society, and encouraging and guaranteeing their education and/or
encouraging the quality of democratic participation through the exercise
of freedom of expression.
The Second Chamber added that Article 109, section XXVIII, of
the LISR contravenes the principle of tax fairness when establishing a
differential treatment for subjects in the same tax situation. In the
opinion of the Chamber , the contents of the article under challenge
does not include, within the contemplated cases of exemption, authors
engaged in the creation of audio-visual works to be exploited via the
cinema, theater, radio, or television, although Article 13, sections I, III,
IX and X, of the Copyright Law includes such works within the activities
protected by its text. 95
95
Ruling 2a. LV/2005, ib., t. XXI, mayo de 2005, p. 539.
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The Chamber observed that the above exclusion does not justify
a differential treatment for subjects in the same legal situation given
that the event generating the tax burden, in the case of copyright, is
constituted by obtaining income derived from the exploitation of those
rights, as inferred under Article 84 of the LISR, which demonstrates
the unequal treatment that the provision under challenge —109, section
XXVIII, of the LISR— gives to subjects in identical tax situations. It first
establishes an income tax payment exemption in favor of those who
obtain income equal to as much as two minimum wages for their
respective geographic areas, for those who permit the publication of
written works by way of books, newspapers, or magazines, or through
the reproduction in series of musical work recordings of their creation,
while forgetting to include under the same benefit the authors who
produce works destined to be exploited through cinema, theater, radio,
or television without any reason whatsoever to justify such an omission.
In this sense, the fact that the plaintiff can obtain greater income
than the authors specifically exempted, to justify the different treatment
given under the law, is an accidental and possible circumstance that
cannot be considered as a basis for the unequal treatment imposed
under the law on such taxpayers, because the event generating the tax
burden, in the case of copyrights, is constituted by obtaining income
from the exploitation of such rights, regardless of the income amount
because the amount obtained is random and does not depend directly
on the cultural activity or on its being conducive to diffusion. This is
especially true since it is not possible to maintain that whoever diffuses
his works through cinema, radio, theater, or television necessarily
obtains greater income than those who do so via books or magazines,
for this depends on circumstances alien to the diffusion activity.
189
MAY
2005
The Supreme Court decides in favor of the
constitutionality of the Federal District Citizens
Participation Law
Unconstitutionality lawsuit 19/2004. Deputies of the Third Legislature
of the Legislative Assembly of the Federal District. May 2, 2005.
Opinion delivered by Justice Olga Sánchez Cordero de García Villegas.
According to the petitioner, Articles 4, section X, and 6 of the Citizens
Participation Law of the Federal District (LPCDF), violated Article 122
of the Federal Constitution because the Legislative Assembly of the
Federal District (ALDF) lacks the power to create a territorial unit other
than that contained in Article 104 of the Federal District Government
Bylaws (EGDF), where reference is made exclusively to territorial
demarcations or political delegations. The bench of the Supreme
Court declared such an argument ungrounded given that Article 122,
subsection C, paragraph 1, section V, of the Federal Constitution, as
well as Article 104 of the EGDF, indicate that the ALDF has the power
to legislate in the field of local public administration, and the respective
law is required to contemplate a political-administrative agency within
each territorial demarcation, generically referred to as delegation. Thus,
the ALDF is authorized to establish the territorial division of the Federal
District in the political-administrative ambit, in conformity with the
number of territorial demarcations.96
The Court added that Article 6 of the LPCDF, in relation to sections
VII and X of Article 4 make it evident that, when establishing
the concepts of territorial demarcation and territorial unit, this is
96
Ruling P./J. 137/2005, ib., t. XXII, November 2005, p. 114.
191
192
RELEVANT DECISIONS
distinguished in the territorial division of each one of these organizations,
in the sense that the one relating to the territorial demarcation is
for political-administrative effects, whereas that corresponding to
the territorial unit is only for effects of participation and citizens’
representation as inhabitants of a district, town, neighborhood
or residential units.
According to the Court, this does not contravene Article 104 of the
EGDF or Article 122 of the Federal Constitution given that, because
the ALDF is authorized within these to establish the territorial division
of the Federal District, contemplating a political-administrative agency
by delegation, this is solely to specify those corresponding territorially
to each one of the demarcations; whereas the division corresponding to
the territorial units is in relation to citizens’ participation.
On the other hand, the Court added that, as far as citizens
participation is concerned, Article 9 of the related law individually
imposes obligations on the inhabitants of the Federal District, including
that of respecting the decisions made by the citizens’ assembly of its
territorial unit. This determination is justified by the fact that, whenever
citizens’ participation is in collective form, the decisions are made through
the generalized agreement of the participants, thus creating a consensus
required to prevail above the private interest for otherwise there would
be no viability in the operation, making null the collective participation
of the citizenship.
The above is corroborated by Article 78 of the LPCDF. The fact
that under the aforementioned legal provision, it is established that
final decisions of the citizens’ assembly are binding on the citizens’
committee and the residents of the corresponding territorial unit, and
that the latter, have the obligation to respect such decisions, does not
confer this assembly the character of a government agency, since
such obligatory nature does not imply for the citizen belonging to such
demarcation the requirement to follow a certain conduct, under penalty
of being sanctioned.
In another aspect, and in relation to the operation, form, and
system of integration of these citizens’ agencies, the Court observed
that Articles 88, 89, 96, 97, 99, 100, 109, 121, 126, 127, 128, 129,
130, 131, 132, 133, 134 and 135 of the LPCDF, indicate that neither
the committees nor the citizens’ councils are cpart of the government
of the Federal District, because other than the fact that they are not
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193
contemplated as such under the Federal Constitution or in the EGDF
of the Public Administration Law of the Federal District (LOAPDF),
their functions are not those of a state agency, for they do not make or
execute decisions in relation to the operation and the public
administration. In fact, with respect to the citizens’ committees, their
function, as shown under Article 88 of the LPCDF, is restricted
to the discussion, analysis, investigation and elaboration of proposals to
carry out works or render public services on behalf of the government
of the Federal District, as well as to resolve problems of general interest
to the citizenship which they represent and to interchange opinions on
public matters.
The Court clarified that the activities and functions of the citizens’
committees are successfully gathered by the citizens’ councils, which
represent the instance of representation for a direct contact with the
authorities of the territorial demarcation and those of the Federal District
Government, according to Article 126 of the LPCDF. Additionally, in
accordance with Article 135 of the same ordinance, some of its
functions include, among others, expressing an opinion on programs
and policies to be applied in the Federal District and the territorial
demarcation. Thus the aforementioned citizen groupings are not
considered an authority.
As far as the concept of nullity raised in the sense that Article 75
of LPCDF contemplates that the citizens’ assembly is to be made up
by inhabitants of the territorial unit, including minors and foreigners,
violates Article 9, of the Federal Constitution, the Court indicated that
the right of association is established in Articles 9, 34 and 35 of such
law; that citizens of Mexico are considered to be those who are Mexican
nationals and more than eighteen years old; and that all citizens are
entitled to be associated in order to be involved in political issues.
However, the citizens’ participation seeks to resolve the problems of
general interest for the citizenship belonging to the same territorial
unit and the exchange of opinions on public issues of the city in general;
so that these types of groupings or associations do not seek to
participate in political issues, which is why the restrictions referred
to under the indicated constitutional provisions are not applicable. 97
On the other hand, the Court asserted that the fact that the members
of the citizens’ committees are elected by vote, as well as the fact that
97
Ruling P./J. 138/2005, ib., p. 113.
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RELEVANT DECISIONS
the organization of the electoral process is under the charge of the
Federal Electoral Institute of the Federal District (IEDF), does not imply
that it is a state agency. The same is applicable with respect to those
who integrate the citizens transparency network, whose objective is to
have total knowledge of the form in which the public expenditure is
exercised and, if applicable, make the related complaint, without going
as far as to correct irregularities and establish responsibilities in relation
to government employees that have not used public money in
accordance with the applicable norms.
The Court concluded that Articles 57 and 87 of the LPCDF do
not violate Articles 108 and 127 in the case of the former, and numeral
36, section IV, in the case of the latter, of the Federal Constitution,
because the citizens who participate as comptrollers or in the citizens’
committee are not government employees.98
98
P./J. 139/2005, ib., p. 115.
Access to preliminary investigation proceedings
by the authorized parties does not imply the right
to issue copies. It suffices for the corresponding
dossier to be made available for consultation
Resolution to Opposite Rulings 150/2004-PS. Between the First
Collegiate Court of the Ninth Circuit and the first Collegiate Criminal
Court of the Seventh Circuit. May 4, 2005. Opinion delivered by Justice
Juan N. Silva Meza.
The First Collegiate Criminal Court of the Seventh Circuit, as well
as the First Collegiate Court of the Ninth Circuit, examined Article 20
of the Federal Constitution, and Article 16, second paragraph, of the
Code of Penal Procedures (CFPP). Their conclusions differed because,
while the former Court considered that the proceedings of preliminary
investigations may only be accessed by the accused, his or her defender,
the victim or plaintiff and/or his or her legal representative, for which
such persons may consult the file in the offices of the prosecuting
authorities in the presence of the personnel in order to take required
data for defense purposes, but that it is not specifically established
that they may take notes; the First Collegiate Court of the Ninth Circuit
considered it against aforementioned Article 16 to prohibit the issuance
of copies of the preliminary investigation records to the accused, his or
her defender, or the victim of a crime or plaintiff.
The First Chamber of the Supreme Court concluded that in the
case at hand there were contradictory rulings and that the issue was
limited to determining whether the Federal prosecuting authorities
should or should not issue copies of the preliminary investigation when
requested by the accused or his or her defender, or by the victim of the
crime or plaintiff.
195
196
RELEVANT DECISIONS
The Cour t indicated that section VII of subsection A of
constitutional Article 20 contemplates, to the benefit of any defendant
in a penal process, the right to adequate defense, which implies the
facilitation of all information to such party, required for defense
purposes. It also established that section X of the same article, in
the reform published in Official Gazette dated 3 July, 1996, was added
along with a fourth paragraph establishing that the guarantees in
sections VII and IX of constitutional Article 20 —in principle applicable
while processing legal proceedings— would also be incorporated into
the preliminary investigation although limited to the terms and
requirements established by the law.
In these conditions —abounded the First Chamber— even though
it is certain that in accordance with the section A of constitutional
Article 20, the accused is entitled to an adequate defense and should
thus have access to all the requested information, and this provision
is also applicable to the plaintiffs in preliminary investigations, as
established in the second to last paragraph of aforementioned section
X, it is also true that this paragraph limits the guarantees offered by
sections VII and IX to the terms and requirements established under
the law.
On the other hand, the First Chamber observed that, in accordance
with the second paragraph of Article 16 of the CFPP, the only people
entitled to access the proceedings in a preliminary investigation
are the accused, his or her defender, the victim or plaintiff and/or his
or her legal counsel, establishing also that any civil employee who
breaches the privacy of the proceedings or provides copies of these or
of the documents comprising the case may be held liable.
Thus the Chamber indicated this rule shows that the prosecuting
authorities are not permitted to provide copies of the proceedings
comprising a preliminary investigation —in keeping with the guarantee
of defense contemplated in sections VII and IX of constitutional Article
20, subsection A—, precisely because it is the Federal Constitution
that establishes that, at such a stage in the process, this guarantee is to
be granted with the restrictions, terms and requirements contemplated by
the relevant laws.
Also, the Chamber noted that the Federal Constitution contemplates
that the relevant laws are to establish the terms and requirements to
ensure that the guarantee of suitable defense is fulfilled. Thus although
it is true that the parties are entitled to all the information they require
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for their defense, it is also true that the prosecuting authorities cannot
provide copies —in order to protect the privacy of the proceedings—
and that this cannot be interpreted as a restriction of the rights of the
parties to obtain the information required for their defense for, although
they cannot be provided copies, Article 16 establishes that they are
permitted access to the proceedings from which they may take suitable
information for their defense.
In this sense, the First Chamber indicated that section VII of
constitutional Article 20, subsection A, does not require the data comprising
the preliminary investigation and requested by the accused, his or her
defender, the victim or plaintiff and/or his or her legal representative
to be provided in copy form —either regular or registered—, but that
the respective file be made available for visual inspection by the parties
for consultation purposes and to take notes. For this reason, Article 16
of the CFPP is in accordance with the individual guarantee of defense,
since it suffices that access be granted to the preliminary investigation
to comply with such right, in turn meaning that not permitting the
prosecuting authorities to issue copies in no way restricts the guarantee
of adequate defense of the defendants or the accused, as contemplated
in constitutional Article 20.
197
Articles 30 and 31 of the Foreign Trade Law,
as well as Article 37 of its Regulations do not
contravene the principles of legality and legal
certainty established under constitutional Articles
14 and 16
Amparo under review 493/2005. Frigoríficos del Bajío, Sociedad
Anónima de Capital Variable. May 4, 2005. Opinion delivered by
Justice Margarita Beatriz Luna Ramos.
To respond to the arguments put forward by the appellant, the Second
Chamber of the Supreme Court referred to the text of Articles 30
and 31 of the Foreign Trade Law (LCE), as well as Article 37 of its
Regulations (RLCE). Based on a systematic interpretation of these legal
provisions, the Chamber observed that the legislature established that
the introduction of merchandise into national territory at a price below
normal value represents an import of goods in conditions of price
discrimination; that such value is the comparable price of identical or
similar merchandise destined for the domestic market of the country
of origin by means of normal commercial operations; the way to calculate
the normal value is established in case such comparison cannot be
made, and the concept describing what is identical and what is similar
merchandise.
The appellant argued that the principles of legality and legal
certainty were encroached for such legal provisions are ambiguous
and do not define what is normal value or what is to be understood by
identical or similar merchandise, and they allow the investigating
authorities to act capriciously, giving arbitrary interpretation to
provisions when the initial decision is made in relation to an
antidumping investigation. It was also claimed that the establishment
of compensation quotas presupposes the exercise of an authority to
199
200
RELEVANT DECISIONS
establish a sanction; consequently, the elements of such sanction cannot
be left to the arbitration of the administrative authorities, which is why
these elements must be established precisely under the law.
In principle, the Chamber considered that the dissatisfied party
made the unconstitutionality of the articles dependent on their
application to its detriment, which prime facie would constitute a
legality problem and not a constitutionality problem. Nevertheless, to
make a pronouncement on this and in response to these arguments,
the Court emphasized that the norms under challenge were issued to
avoid price discrimination, establishing the normal value at which the
merchandise must be introduced into national territory, determining
the way such value is to be calculated by means of a comparison between
products; in keeping with the comparable price of identical or similar
imported merchandise from the country of origin to a third country in
the course of normal commercial operations, which must be highest
provided it is a representative price; or in keeping with the reconstructed
value in the country of origin —to be obtained from the sum of
expenses, general production cost and fair profit, which must
correspond to normal commercial operations in the origin country.
As a complement to the form in which the normal value of merchandise
is to be established, the Chamber specified that "identical" merchandise are
the products that are equal to the product under investigation in every
aspect whereas "similar" products are that, although not equal in all aspects,
display similar characteristics and makeup, allowing them to carry out
the same functions and making them commercially exchangeable with
those they are compared with. In the opinion of the Chamber, on such
premises no violation can be said to exist of the principles of legality
and legal certainty, for it is not left to the arbitration of the administrative
authorities to impose a sanction derived from an investigation process
from importing in conditions of price discrimination, because the manner
is specified in which they are to be calculated based on a comparison
with similar products, or their makeup and production expenses.
In this sense, the Chamber emphasized that, in terms of Article 131
of the Federal Constitution, the Federal Congress is authorized to restrict
imports and exports of merchandise in order to regulate foreign trade,
the economy of the country, the stability of national production, or to
fulfill any other intention for the benefit of the nation. In exercise of
such a constitutional power, the Congress has established the bases
for the legal framework regulating foreign trade operations. For such
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201
purposes, on the one hand, it has determined the requirements that,
depending on the nature of the merchandise in question, must be
fulfilled to introduce it or export it from national territory. On the other
hand, with the intention of ensuring that such requirements are fulfilled
and their objectives are obtained, it has created limitations that must
be fulfilled or tolerated by citizens when they try to export or import
merchandise into national territory, also contemplating the authority
of the relevant federal public administration agencies who allow for
the verification of fulfillment of the aforementioned restrictions to foreign
trade and, if applicable, of the aforementioned limitations.
In this connection, the Chamber established that the aforementioned
numerals cannot be considered to contravene the principles of legality
and legal certainty because the term "normal value" refers to the
quantification of the merchandise, which provides certainty to citizens
with respect to such concept for such certainty is verified by the
comparison to another product of value, which is why such determination
of the imposition of sanctions in case of import in price discrimination
conditions is not left to the arbitration of the administrative authorities.99
Also, the normal value considered the comparable price for identical or
similar merchandise destined for the domestic market of origin in the
course of normal commercial operations; or the reconstructed value in
the country of origin, obtained from the sum of expenses, general
production cost plus a fair profit.
According to the Chamber, the legality guarantee is based on clear
ordinances that allow the authority to act adequately, whereas legal
certainty requires the law to protec the right of the citizen, preventing
such authorities from incurring in abuses. The Chamber concluded that
the laws under dispute do not contravene such principles because they
allow for the calculation of the normal value of the merchandise, which
must be considered by the authorities in determining the related
sanctions in case of imports under price discrimination conditions.
99
Ruling 2a. LVI/2005, ib., t. XXI, May 2005, p. 529.
Any notification of rescission of a labor relationship
must be handed over to a worker within a
one-month term, or otherwise presented before
the board in the 5 days following the day on
which actual reception has been refused.
Otherwise, prescription of the law corresponding
to employers shall prevail
Collegiate Court of the Twenty Third Circuit, the former Collegiate
Labor Court of the Third Circuit, currently the First Collegiate Labor
Court of the Third Circuit and former Second Collegiate Court of the
Sixth Circuit, currently the Second Collegiate Civil Court of the Sixth
Circuit. May 4, 2005. Opinion delivered by Justice Sergio Salvador
Aguirre Anguiano.
The Second Chamber of the Supreme Court considered that no
contradictory rulings existed between the criterion sustained by the
then Second Collegiate Court of the Sixth Circuit —currently the Second
Collegiate Civil Court of the Sixth Circuit, and that sustained by
the Collegiate Labor Court of the Third Circuit—, currently First Collegiate
Labor Court of the First Circuit, and the Third Collegiate Court of the
Twenty Third Circuit, for the courts basically indicated that, under
Article 517 of the Mexican Labor Law (LFT), the right of employers to
dismiss workers expires after a month and it may happen that the
worker is advised of termination on one day and receives the related
notification on another date. The Chamber observed that the Second
Collegiate Court of the Sixth Circuit had not tackled the study in terms
of whether the prescription of the employer’s rights of assuming the
labor relation as rescinded whenever the related notification is given
outside the established term is valid. On the other hand, the Collegiate
Labor Court of the Third Circuit did analyze that subject, for it
considered that the prescription is interrupted the moment the
disciplinary measure is decreed, and not when the worker is informed.
Whenever notification of the respective notice is provided after the
203
204
RELEVANT DECISIONS
term of one month, this does not mean that the relative right has
prescribed. The Third Collegiate Court of the Twenty Third Circuit
was opposed to this ruling. Thus, the Supreme Court emphasized that
the courts mentioned second and third did not limit themselves to
affirming or denying the one-month prescription of employer actions
to dismiss workers and that the worker may be informed of termination
on one date while notification may come on another, but that the study
was more far-reaching. The Supreme Court then reached the conclusion
that the Second Collegiate Court of the Sixth Circuit —currently the
Second Collegiate Civil Court of the Sixth Circuit— had not denied
that affirmed by the other courts, which is why these did not exist
contradictory rulings.
However, there was a contradiction between the criterion sustained
by the then Collegiate Labor Court of the Thirteenth Circuit —currently
the First Collegiate Court of the Third Circuit— and that sustained
by the Third Collegiate Court of the Twenty Third Circuit for, subsequent
to hearing direct amparos 132/87 and 739/2004, the then Collegiate
Labor Court of the Third Circuit and the Third Collegiate Court of the
Twenty Third Circuit, respectively, ruled on whether, in the event that
the employer, within the one-month term contemplated in Article 517,
section I, of the LFT, terminates the labor relation tying him to the
worker due to causes not attributable to the latter, prescription is valid
or not and whenever termination notification is received after the
indicated term. To resolve the matter, the then Collegiate Labor Court
of the Third Circuit reasoned that if the dismissal of the worker is
decreed within the term of a month (Article 517, section I, LFT), there
is an interruption of the prescription of the right of the employer to
terminate the labor relation by causes imputable to the worker,
regardless of whether the respective notification to the worker is
provided after that term for the issuance of the statement of termination
marks the termination of the right in question. For its part, the Third
Collegiate Court of the Twenty Third Circuit indicated that the worker
must be informed of his or her dismissal within the one-month term for
any such notification practiced outside such term means that the right
has prescribed at the time the employer comes to exercise it, even
though termination has been decreed within the established term. For
purposes of computing the term of prescription, what matters is the
date in which the worker is informed of his dismissal and not the date
on which he receives the related notification.
Thus, the Second Chamber was required to determine whether,
in cases where the employer terminates the labor relation for reasons
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205
attributable to the worker within the contemplated one-month term
under Article 517, section I, of the LFT, but the related termination
notification is given to the worker after the established term, the
prescription of the employer’s right to terminate the labor relation is
valid or not. Under its prevailing criterion,100 which coincided with
that maintained by the Third Collegiate Court of the Twenty Third
Circuit, the Second Chamber resolved that under Articles 47 and 517,
section I, of the LFT, establishing the right of the employer to terminate
the labor relation free of all responsibility and to thus dismiss the worker
whenever he incurs in some of the causes contemplated in the rule
first mentioned prescribes in a month, it is evident that the issuance of
a notice of dismissal does not rule out the exercise of the right in
question but that, for such purposes, it is necessary to notify the worker
and for the latter to consequently cease to be employed, which must
happen within the aforementioned term. The Chamber added that, if
notice of termination is given to the worker subsequent to the one-month
term mentioned under Article 517, section I, the right of the employer
to dismiss the worker definitely prescribes, except in the event that
notification is given on the last day of the indicated month and the
worker refuses to receive it, in which case it must be deposited in the 5
days following the respective meeting and a request must be made for
the worker to be duly notified at his home, in keeping with the Second
to last paragraph of aforementioned Article 47. Moreover, added the
Chamber, should the worker be absent from the place of work during
the days in which he is to be given notification, the employer may
go to his recorded address and proceed in the indicated terms whenever
the worker refuses to receive such notification.
100
Ruling 2a./J. 59/2005, ib., t. XXI, May 2005, p. 479.
Amparo authority is granted by the District
Judge in whose jurisdiction the claimant is
being held whenever the administrative
authority fails to provide for the advanced
release petition
Resolution to Opposite Rulings 1/2005-PS. Between the Second and
Fourth Collegiate Criminal Courts of the First Circuit. May 11, 2005.
Opinion delivered by Justice José de Jesús Gudiño Pelayo.
The First Chamber of the Supreme Court determined that there were
contradictory rulings. The Second Collegiate Criminal Court of the
First Circuit ruled that the omission of the administrative authority to
submit the request to obtain the benefits of advanced release, is a
negative act without material execution. On the other hand, the Fourth
Collegiate Criminal Court of the same circuit considered that this
omission is a negative act and does imply material execution.
The point of contradiction to be clarified consisted of determining
whether the alleged act represented by the omission of an administrative
authority to provide for advanced release is a negative act and whether
it involved material non-execution so as to establish the authority of
the Judge to hear the amparo trial. The Court indicated, firstly, that
both cases put to the consideration of the lower courts had involved
conflicts of authority relating to identifying the correct Judge to hear
an amparo trial when the alleged act involves an omission by an
administrative authority to provide the request to obtain the benefits
of the advanced release from a sentence being served in a rehabilitation
center in the jurisdiction of a District Judge, and the neglectful
administrative authority is in the jurisdiction of a given Judge.
The Court then added that, whenever a citizen requests advanced
release from an administrative authority, this can bring on the following
207
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RELEVANT DECISIONS
conducts: a) failure to submit a request or, b) submission of such request.
In the latter case, the benefits requested may be denied or granted.
As for the legal nature of the omission to submit the request of the
citizen to obtain the benefit of reduction of the sentence imposed by
the judicial authorities, the Court ruled that the effects brought on
by such omission, construed as a negative act, with positive effects for
the answer given to the plaintiff directly affects his personal freedom,
regardless of the nature of such response. In fact, if the administrative
authority grants the benefits requested, it is thus clear that the plaintiff
is released. However, if the authority rejects the benefits requested,
this also affects the freedom of the plaintiff for he or she continues to
be deprived of his or her freedom.
In this sense, the First Chamber, upon resolving case 141/2004-PS,101
considered that as of the moment the processing of some of the benefits
is rejected in order to substitute the execution of the prison term
imposed by the courts authorities, personal freedom will also be
restricted not only by virtue of the sentence condemning the applicant,
but also by the refusal in question; which is why the final decision in
question constitutes an act that affects the personal freedom of the
individual.
Thus, the Chamber specified that, whenever the convict has requested
some of the benefits established by the legislature to suspend the
execution of the prison sentence imposed on him by the judicial
authority, and the corresponding authority does not pronounce itself
on the request, it is clear that as from then that his personal freedom
will continue to be restricted, not only by the sentence condemning
him but by the omission in question.
Therefore, for the First Chamber it was clear that the omission by
an administrative authority to provide the request of the citizen to obtain
a benefit conducive to suspending the execution of the prison sentence
imposed by the judicial authority, constitutes an act that affects
the personal freedom of the individual. This having been established, the
Chamber tackled the crux of the conflict, that is to say, who is the Judge
with the authority to arbitrate in the case of the determinations under
challenge made by the authorities responsible for executing the prison
sentences imposed by judicial authorities, whenever the administrative
authorities are neglectful in answering the requests of the citizen to
obtain the suspension of the execution of the prison sentence.
101
Ib., June 2005, p. 6.
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In this sense, the Chamber indicated that under Article 36 of the LA
there are three rules to determine the authority of the district Judges:
a) this is generally determined in accordance with the place of residence
of the authorities required to execute the sentence, the place where an
attempt is made to execute such sentences, the time they are in fact
executed, or the place where the alleged act has been executed; b) when
the alleged act has started to be executed in a District and continues to
be executed in another, any of the to judges responsible for those
jurisdictions will be authorized c) if the alleged act does not require of
material execution, the competent District Judge will be responsible in whose
jurisdiction the authority resides that dictated the alleged act.102
In effect, if the alleged act does not require material execution,
authority will pertain to the Judge in whose jurisdiction the authority
resides that had dictated the alleged act; otherwise, the authorized
Judge will be the one with jurisdiction over the place where the execution
of the act in question takes place, and will necessarily be the Judge of
the place for the location of the person against whom such order is
dictated. In the opinion of the Chamber, the intention of the legislature
when establishing the referred rules of jurisdiction was to facilitate
access to constitutional justice for the citizen in order to have better
possibilities of defense and, thus, be able to adequately and permanently
attend to the development of the legal proceedings instituted.
The jurisdiction hypothesis that interested the Chamber was that
specified in subparagraph a), particularly in this sense that the District
Judge will be authorized in the jurisdiction the act in question is to be
executed. Then, if the party requesting concession of one of the benefits
contemplated under the law to substitute the prison sentence receives
no response from the administrative authorities, it is clear that such
individual continues to be deprived of his or her freedom at the place
of confinement. Therefore, the First Chamber concluded that, in conformity
with the aforementioned rule of jurisdiction, the continuation of the
deprivation of personal freedom of the individual means that such act will
continue to be executed where the individual is confined. Thus the District
Judge in whose jurisdiction the penitentiary is located will be the one to
arbitrate the guarantees proceedings.
102
Ruling 1ª./J. 54/2005, ib., t. XXII, August 2005, p. 58.
The judge shall individually assess whether
granting the corresponding guaranty of final
suspension for provisional alimony reduction
is admissible, in order to ensure the subsistence
of both the beneficiary and the alimony debtor
Second Collegiate Civil Courts of the Seventh Circuit. May 11, 2005.
The First Chamber of the Supreme Court considered that there
existed a contradictory rulings given that the Collegiate Courts
involved had studied the same legal question and, upon resolving,
had reached opposing conclusions. The background to the issues
that motivated the contradictory rulings involved the occurrence of the
following events: a) the alimony recipient instituted amparo proceedings
requesting a definitive suspension against the final decision whereby
it was determined that a reduction in the provisional alimony was
valid; b) the definite suspension was granted without guarantee;
c) dissatisfied with such final decision, the alimony debtor appealed
for a review; and d) to support the final decision, the contents of Article
124 of the Amparo Law (LA) were analyzed.
The Second Collegiate Civil Court of the Seventh Circuit determined
that definite suspension must be granted subsequent to bonding being
obtained whereas the First Collegiate Civil Court of the Seventh Circuit
ruled that it was correct to grant the definite suspension without
guarantee. Thus, the First Chamber was required to establish whether
it is necessary to grant guarantee with respect to definite suspension
whenever the act in question is the decision that determines the
production of the alimony payment.
211
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After preparing a food study and the study of the suspension of
the act demanded under the amparo, the First Chamber examined the
guarantee requirement necessary to grant a guarantee under Article
125 of the LA. Having read this article, the Chamber abounded that
it is evident that there is a need for the plaintiff to provide sufficient
guarantee to repair the damage and compensate for potential
detriment caused to the aggrieved third party as a result of suspending
the act demanded and in case constitutional protection is not obtained.
The First Chamber clarified that guarantee is taken to mean the different
means of bond referred to under the LA —caution, deposit, guarantee,
counter bond and mortgage guarantee— all of which must be accessible
and must be granted to maintain the effectiveness of the suspension
awarded. To estimate the related amount, the Court, discretionarily and
on the basis of the demanded benefits, the circumstances surrounding
the case and existing evidence in the amparo, will determine the liquid
amount or exact amount of the guarantee; in a criminal case it will attend
to the nature, modalities, and characteristics of the crime, the economic
situation of the plaintiff and the possibility of evasion of justice.
Furthermore, the Chamber indicated that, given the nature of the
amparo, in front of the plaintiff is the aggrieved third party; moreover,
as regards the suspension of the act in question, there is opposition
between the two parties; with respect to this conflict of interests, the
law contemplates norms conducive to maintaining the balance without
favoring either the plaintiff or the aggrieved third party, unless the
subsistence of one party or the superior rights of a minor are at risk.
In such sense, the LA establishes that whenever, in accordance with its
Article 124 of the respective legal requirements have been satisfied
and the suspension of the demanded act must be decreed (if a third
party interested in its execution of such act exists), suspension must be
by means of a guarantee granted by the plaintiff to repair and compensate
for any damages caused to the third party should the latter fail to
obtain a favorable outcome from the trial.
The First Chamber observed from the facts of the present contradictory
rulings that suspension had been granted with respect to the final
decision whereby the reduction to the provisional alimony payment
had been determined. Thus, on the one hand existed alimony
beneficiary wishing to continue receiving total alimony payment,while
on the other hand, was the alimony payer, who managed to have such
pension reduced. The Chamber warned that situations of this nature can
involve the subsistence of one of the parties, meaning that the judge is
required to ascertain such a possibility in each case, and determine
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whether, depending on the particularities of the matter at hand, a
guarantee should be awarded are not.
The Chamber clarified that this responds to the fact that the right
to receive sustenance is fundamental and protected under the law in
the case of minors and those qualified under the law as beneficiaries
of alimony given the relation they hold or held with the person
responsible for providing such sustenance. Thus, the judicial authority
has both the obligation to safeguard the right to receive food of the
beneficiary and that of guaranteeing the subsistence of the alimony
payer; in case the subsistence of the alimony payer is placed at risk
this could bring on suspension without the respective guarantee.
Nevertheless, the First Chamber assured that the case can arise
whereby it is indispensable to grant the guarantee corresponding to
the suspension for, on the contrary, the subsistence of the alimony
payer could be compromised; that is to say, he who was required to
provide alimony in excess of his income, endangering his subsistence
because of the requirement to provide the payment in question. In such
case, the granting of such guarantee contemplates that the amparo
seeker may guarantee the possible damages potentially suffered by
the aggrieved third party for the event of favoring to obtain a favorable
amparo outcome, the alimony payer —aggrieved third-party— would
have received a reimbursement equal to the difference in the alimony
amount which, on occasions, represents his subsistence allowance.
Finally, the First Chamber determined that the judge must
determine in each individual case whether, by suspending the reduction
in the provisional alimony payment, the subsistence of the recipient is
placed at risk —depending on his needs— or whether that of the
alimony payer is placed at risk —depending on his real needs—, and
must resolve respectively with regard to the granting of a guarantee. 103
103
Ruling 1a./J. 53/2005, ib., July 2005, p. 354.
The President of the Republic is empowered
to make observations on the decree of Federal
Budget
Constitutional dispute 109/2004. Federal Executive. May 17, 2005.
Opinion delivered by Justice Guillermo I. Ortiz Mayagoitia.
The crucial points of the litis consisted of determining, firstly,
whether the President is authorized constitutionally to make
observations to the decree of the Federal Budget (PEF), approved by
the Chamber of Deputies of the Congress. 104 The second is related to
whether the authority granted to the Chamber of Deputies of the
Congress, in terms of Article 74, section IV, of the Federal Constitution,
to modify the disbursements budget project received from the Federal
Executive is subject to any constitutional limitation, or whether it is
absolute. The last issue is whether the modifications made by the
Chamber of Deputies to the budget for the 2005 tax year transgress
the principles of division of powers and constitutional supremacy, found
in Articles 49, 74, section IV, 89, section I, 90 and 133 of the Federal
Constitution. The bench of the Court, emphasized that the issues raised
demonstrated that the recognition or ignorance with regard to the
presidential authority to make such observations is derived from
the divergent interpretation that the contending parties made with
respect to Articles 70, 71, 72 and 74 of the Federal Constitution.
104
This controversy gave rise to the rulings P./J. 78/2005 and P./J. 77/2005, published
in Semanario Judicial de la Federación y su Gaceta, Novena Época, t. XXII, July 2005,
pp. 914 y 917, respectively.
215
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RELEVANT DECISIONS
In the opinion of the Chamber of Deputies, the literal nature of
Article 74, section IV, paragraphs one to four and eight of the Federal
Constitution imply that the procedure of approval of the PEF is regulated
in this constitutional precept and that it differs from that regarding initiation
and formation of laws, contemplated under the third title, second chapter,
section two, of which Article 72.
The Court noted that the literal interpretation is because Article
74, as well as not containing any restriction whatsoever to the
presidential authority to make observations to the PEF, also fails to
specifically and formally regulate the approval procedure. Furthermore,
the systematic interpretation of constitutional Articles 70, last paragraph,
Articles 71, 72 and 74, section IV, other than confirming the conclusion
derived from the literal interpretation of Article 74, section IV, demonstrates
that the legislative procedure is just one, and that the President can
make observations to any project of law or decree regardless of whether
that is the exclusive jurisdiction of one of the Chambers or of the
Congress, and that the restrictions to this right appear in paragraph of
Article 70 and in subparagraph J of Article 72, which make no mention
of the PEF decree.
Also, a historical interpretation conducted by the Court revealed
that as from the 1857 Constitution, mainly after the 1874 reform,
authority is established in the Constitution for the Federal Executive
to make observations with respect to projects of law and decrees,
restrictions imposed on such rights, and the conditions for them to be
surpassed by the legislative body. Moreover, a genetic-teleologic
interpretation explains the fact that the causes that brought on the institution
of the presidential right to veto were the accumulation of events that,
because of the excess power granted to the Legislature and taken away
from the Executive, had generated political and social crises in the
nation, to such a degree that the President was impeded from fulfilling
his duties, altering the balance of powers.
Given the interpretations above, the Court concluded that the
President does have the authority to make observations on the PEF
decree, which, after being voted on and discussed may be denied by
the Chamber of Deputies when rejected by two thirds of the deputies
in attendance.
The Court added that, although approval of the PEF decree is the
exclusive authority of the Deputies, this only means a sphere of authority
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which, given its exclusivity, prevents the Senate from taking on matters
reserved for the Chamber of Deputies. Moreover, the exercise of exclusive
powers is not included within the restrictions expressly indicated in
subparagraph J of constitutional Article 72, and in the last paragraph of
The Court added that, although Article 72 is contained in section
II, denominated "On the initiative and formation of laws", and that
Article 74 is in section III, titled "On the powers of the Congress", it is
true that that both rules belong to chapter II, "On the Legislature" and
are likewise included in the same title three of the Federal Constitution.
In addition, it is incorrect to consider that the procedure to approve
the PEF differs from that contemplated in constitutional Article 72 since
Article 74, section IV, includes no specific and formal regulation of this
procedure for it does not establish how it is to be discussed, voted on
and approved. This, together with that established in the first paragraph
of aforementioned Article 72, leads to the conclusion that the legislative
procedure is just one.
It cannot be maintained —objected the Court— that the
intervention of the Federal Executive in the elaboration of the PEF is
limited to presenting the project, participating in the debates on the
works of the commission and their publication. Articles 70, last
paragraph, 71 and 72, that establish norms relating to the legislative
procedure, indicate that the President of the Republic has power to
make observations on the PEF. What is more, the authority of the
Federal Executive to make observations on the PEF is not derived
from an interpretation a contario sensu from subparagraph J of
constitutional Article 72 but from the application of various ways
of interpreting the norms contained in Articles 70, last paragraph, 71,
72 and 74, section IV, of the Constitution.
The Court clarified that, even supposing that constitutional Articles
72, subparagraph J, and 70, were not the only provisions taxatively
indicating the cases where the President is denied the right to make
observations, express provisions granting such power do exist, as in
the case of subparagraph A of constitutional Article 72. Neither did the
Court agree that, the application of the right to veto to the PEF approval
process would go against the principle of collaboration contained in
section IV of constitutional Article 74, given that the right to veto is a
mechanism by which the Constitution prevents one power from
imposing itself on another.
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Another point made by the Court was that, although constitutional
Article 74, section IV mentions the approval of the "budget of the
Federation", this in no way detracts from its nature as a project. While
it still remains to be published and prior to its entry into effect, it does
not have the character of a law, which is why it is the object of
observations by the head of the Federal Executive.
Based on its conclusions, the Court decided that the resolution of
the Chamber of Deputies, of the LIX Legislature, approved on 14
December, 2004, discarding, the observations document formulated by
the President whith regards to the modifications made by the Chamber
of Deputies to the Federal Budget Project for the 2005 tax year,
constitutes a violation of the essential formalities of the legislative
procedure, in terms of constitutional Articles 72 and 74, section IV. This
flaw affects the decree issued by the Chamber, bringing on partial nullity.
The type contemplated under Article 112 bis,
Section IV of the Credit Institutions Law is not
updated when the active subject acts before
jurisdictional authorities in legitimate exercise
of his profession in order to enforce the property
rights of his principal
Amparo under review 35/2005. May 18, 2005. Opinion delivered by
The act in question involved the approval, issuance, promulgation,
countersignature, publication and application of the promulgation decree
relating to the issuance of Article 112 bis, section IV, of the Credit
Institutions Law (LIC), published in the Official Gazette on 17 May of
1999, whose contents were as follows:
Article 112 Bis. Will be sanctioned with imprisonment of between three
to nine years and thirty thousand to three hundred thousand days fine
for those guilty of:
(…)
IV. Unduly obtaining or using client or banking system information
without due authorization.
The respective penalty may be increased in an amount equal to an other
half in the event that the person responsible for any of the aforementioned
conducts as indicated in the previous sections is the advisor, officer, or
employee of any credit institution.
For the First Chamber of the Supreme Court, what needed to be
explained involved determining whether the crime of illegal use of clients
and banking systems operations information, contemplated in the
aforementioned legal considerations and facts, violates the principle of
exact application of criminal law, contemplated in the third paragraph
of constitutional Article 14.
219
220
RELEVANT DECISIONS
In this sense, the Court warned that the indicated crime is special
and has an unspecified perpetrator —any person or banking
employee—; the victims are the clients of the banking system and the
proprietors or parties interested in the banking operations; and objective
circumstances surround the illegal conduct, and the material object is
the clients and banking operations system information. As for the legal
good protected, they are the economic and personal privacy of the
patrimony, goods, operations, and activities of the clients who conduct
banking operations. Finally, the result does not exist for the offense is
merely of a conduct nature, regardless of whether a benefit is obtained
or damage is caused.
In addition, the First Chamber considered that the Judge, as
interpreter of the law, is required to meticulously analyze the criminalized
conduct to determine their scope based on the conduct or facts
described, and those of complementary elements. Thus, the crime of
obtaining or unduly using information, as in the case of other crimes,
is endowed with both objective and normative elements, including
that relating to the term "unduly", which calls for a necessary legal
interpretation or evaluation and, in this sense, the judge, in order to
apply the law, may analyze whether the conduct of any person or of the
banking employee is in keeping with its governing norm, to be able to
thus determine whether the conduct in question is typical or atypical.
In the case at hand, the Chamber concluded that section IV, of the
Credit Institutions Law cannot establish that the crime established in
Article 112 Bis is updated whenever the perpetrator exercises the
conduct before Court authorities in the legitimate exercise of his
profession to enforce the patrimonial rights which his principal holds.105
In view of the above considerations, the First Chamber observed
that the crime contained in the article under challenge does not
contravene the guarantee of exact application of criminal law for it
clearly establishes the punishable conduct and the sanction applicable
to said conduct. For that reason, it should be considered constitutional,
and the fact that the term "unduly" is used and that the LIC does not
contain text that clarifies its meaning, does not imply a violation of
the constitutional principle, for it is a concept whose content is clear
as much in terms of both common and legal language.
105
Ruling 1a. XCV/2005, ib., September 2005, p. 301.
Veto may not be exercised for legislative orders
related to the Auditor General (Legislation of
the State of Tabasco)
Constitutional controversy 52/2004. Legislature of the State of
Tabasco. May 23, 2005. Opinion delivered by Justice José Ramón
Cossío Díaz.
Registration number 67
The Head of the 58th Congress of the State of Tabasco, in representation
of such State, demanded the nullity of the unnumbered official
document dated 24 February, 2004 issued by the Federal Executive
of the State of Tabasco, by means of which Decree Number 001
dated 12 February of the same year was discarded in all its parts, as
approved by the Congress of the State, and which abrogated Decree
Number 291, dated 15 December, 2003, appointing the Head of the
Auditor General.
After admitting the matter, the Court emphasized that the State
of Tabasco Legislature —an actor in the constitutional dispute— argued,
in essence, that the Governor is not empowered to formulate
observations in relation to the regulation of its structure and internal
operation; consequently, whenever, under the local Constitution, the
Auditor General of the State is part of the Legislature, and the latter is
responsible for appointing its head, the Executive cannot "veto" the
decree in question.
Having specified the above, the bench of the Supreme Court,
considered it necessary to establish whether, in accordance with the
221
222
RELEVANT DECISIONS
principle of division of powers,106 there are actions of the Legislature
whose very nature impedes the intervention or collaboration of the
Executive authority by means of the so-called "veto". For such purposes,
it analyzed the division of powers principle contemplated in Articles 116,
paragraph one, of the Federal Constitution, and 11 of the Constitution
of the State of Tabasco.
Also, the Court referred to the "veto" and specified that it
constituted an act of collaboration between the Legislature and the
Executive and a mechanism through which the Constitution prevents
one power from displacing another, and that, through it, the Executive
may participate in the legislative procedure, since the project of law or
decree approved by the Legislature does not attain such a nature until
after it is exercised or precludes the term of the Executive to issue its
observations.
Therefore, the Court indicated that the veto —the power
contemplated under Articles 28 and 35 of the Constitution of the State
of Tabasco— is a prerogative of the executive body consisting of the
possibility of ensuring that the legislative body gets any additional
information, objections, and inquiries that may not have been
taken into account when discussing the initiative during the respective
legislative procedure. Thus, it established that, in this sense, the veto is
a means of controlling or neutralizing the exercise of the Legislature.
Having formulated the above considerations, the Court abounded
that although the Constitution of the State of Tabasco expressly
establishes the cases in which a collaboration or coordination of the
powers in determined acts must exist, there is a principle immersed in
the concept of division of powers consisting in that there are acts which,
in light of their nature cannot be the object of intervention by another
power to ensure that the basic principle is not compromised and that,
consequently, the exercise of the right to veto granted to the Executive
authority is not limitless. There are acts that cannot be the object of
such control for that would jeopardize the independence of the
Legislature and might potentially bring on dangerous or unnecessary
confrontations between the powers.107
106
Cfr. La división de poderes. Serie Grandes temas del constitucionalismo mexicano,
No. 2, Mexico, Suprema Corte de Justicia de la Nación, 2005.
107
Ruling P. XXVIII/2005, Semanario Judicial de la Federación y su Gaceta, Novena
Época, t. XXII, July 2005, p. 921.
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Therefore it made reference to the fact that among the cases
whereby, under the State Constitution, the right to veto may not be
exercised, is the issuance or approval of amendments to the Legislature
Law and its internal regulations, as these are internal powers pertaining
to the Congress.
With the above in mind, the Court considered that the exercise of
the right of veto in cases such as that indicated could be translated
into the intervention of a power (the Executive) in the powers of the
another (Legislature), thus jeopardizing the division of powers principle
in the local sphere, contemplated under Article 116 of the Federal
Constitution.
The Court, subsequently considered that even though it is not
expressly specified that the Executive cannot formulate observations
with respect to questions relating to the regulation or internal structure
of the Legislature or its bodies, this should not be taken to mean that
this can be done, for reference is specifically made to the fact that in
order to explain this question it is necessary to attend to the nature of
the acts of the legislative body, to thus verify whether or not such
intervention is permitted.108 In those terms, the Court determined that in
order to examine whether the Executive can formulate observations
to a decree relating to the head of the State General Auditor, it was
necessary to examine the nature of such power and of the auditing
agency. In these terms, it concluded that the office of the General
Auditor State is a decentralized agency of the local Congress, and that
it has the responsibility of appointing the head of such agency. This in
turn means that this power is the responsibility of the powers pertaining
to the Congress, and that it is not valid for the Executive to make
related observations.
Therefore, the Court found that the fact that the State Constitution,
within the procedure that gives origin to a law or decree, anticipates
the intervention of the Executive in its sanction and promulgation,
should not be taken to mean that this is always the case but, above all,
the nature of the power based on which the decree is issued should be
evaluated. Thus, in principle, in the case of powers pertaining to the
legislative agency or in internal aspects of the legislative body, as in
the case of determinations concerning the structure or regulation of the
State Audit Agency, it is not valid to exercise the veto even when
108
Ruling P. XXIX/2005, ib., p. 920.
224
RELEVANT DECISIONS
the legislative agency formally issues a decree in this respect, for
such circumstance does not imply that the Executive can exercise,
per se, such a right, rejecting the decree completely or partially under
the pretext that it considers the procedure followed by the Congress
of the State was contrary to the constitutional or legal framework of
the entity.
Thus, the Court concluded that the act contested transgresses
the principle of non-intervention of one power with another in the
case of acts of a determined nature, as well as the division of powers
principle in the local sphere, which is why it declared the nullity of the
unnumbered official document dated 24 February, 2004, issued by
the governor of the State of Tabasco, and ordered the latter to publish
Decree 001 dated 12 February, 2004, in the terms specified for such
purposes.
Whenever amparo proceedings are late with
respect to the first act of application of a
self-applicative law, it is also late in association
in relation to the law, even if the 30-day
objection term has not elapsed
Collegiate Court Administrative Court of the Third Circuit and the
First Collegiate Court of the Fifth Circuit. May 27, 2005. Opinion
delivered by Justice Margarita Beatriz Luna Ramos.
The contradictory rulings came about because the contending
Collegiate Courts examined the matter and pronounced themselves
on the same legal subject; that is, that generated when the following
conditions are met: a) the issuance of a law whose very promulgation
is detrimental to its beneficiaries, b) the concrete application of such
law within the 30 day term available for objection to its very issuance,
c) the objection to such law and its application within the legal term of
30 days to attack the former as a result of its very issuance, and d) the
circumstance surrounding the fact that presenting institute amparo
proceedings takes place after the 15 day term provided by Amparo Law
to argue against its application.
The Courts in conflict resolved the problem in a diametrically
opposed manner. The Third Collegiate Administrative Court of the
Third Circuit considered that the amparo trial was inadmissible
because the complaint had been filed extemporaneously as regards
the concrete act of application of the law in question, without
attributing any extraordinary legal meaning to the fact that the law
could have been self applicable, and that the term established to
oppose its very issuance had not yet expired at the time legal
proceedings were instituted. The First Collegiate Court of the Tenth
Circuit interpreted the provisions governing the term available to
225
226
RELEVANT DECISIONS
initiate amparo proceedings in a harmonizing way and generated a
criterion to ensure that this form of objection —where terms overlap or,
rather, the 15 day term is absorbed by the 30 day term— is considered
an opportune approach to guarantee that the constitutional control is in
conformity with the law, as well as its execution, although censorship
takes place after the related generic term has expired.
The Second Chamber of the Supreme Court resolved the
controversy, coinciding substantially with the ruling of the Third Collegiate
Administrative Court of the Third Circuit.
The Second Chamber decided that, according to Articles 21, 22
and 73, section XII, a law that is self applicable can be challenged at
two different moments: a) in the 30 days following its entry into effect,
and b) in the 15 days following the time it comes into effect in
conformity with the related law, or as from when the complainant is
advised of the final decision or resolution, or with respect to the time
that such knowledge is acquired. The existence of these terms to
challenge the law does not imply that they can coexist simultaneously
because that would create legal uncertainty. Then, if the complainant
contests the law as from the time it comes into effect, the applicable
term will be 30 days; however, if the plaintiff challenges its first act of
application, the term will be 15 days. Thus, if the complainant contests
the law as a result of its first act of application, but files the related
complaint after the aforementioned 15 day term, the case becomes
inadmissible in relation to the act of application and, consequently, also
with regard to the law. The application of a 30 day term in relation to
the latter may not be sought given that the law is self applicable.
Although this is its nature, the complainant has challenged it through
its first act of application. 109
109
Ruling 2a./J. 95/2005, ib., September 2005, p. 328.
JUNE
2005
Any decision imposing a treatment during
confinement measure for young offenders shall
set forth its duration in a specific and particularized
manner
Resolution to Opposite Rulings 35/2005-PS. Between Collegiate
Criminal Courts Seven and Nine, both of the First Circuit. June 1,
2005. Opinion delivered by Justice Juan N. Silva Meza.
Registration number : 69
The Ninth Collegiate Penal Court of the First Circuit ruled that the
time period for internment treatment contemplated under the Juvenile
Delinquents Treatment L aw (LTMI), cannot be considered
indeterminate because its Article 119 establishes a maximum duration
of five years. Nevertheless, within that maximum term, depending
on its development and progress, the time may be modified or maintained
but, under no circumstances, may it exceed the maximum five years,
as established under Articles 61, 62 and 124 of the law. On the other
hand, the Seventh Collegiate Penal Court of the First Circuit considered
that final judgment imposing internment, specifying the minimum and
maximum terms indicated under the LTMI, violates the rights of the
young offender because individualizing the sanction implies the existence
of the margins established by the legislator, which is why the authority
is required to establish the duration of the measure.
The First Chamber of the Supreme Cour t obser ved that
the contradictory rulings derived from the consideration made by the
Collegiate Courts with regard to internment treatment measure for
juvenile delinquents, in terms of whether this measure is indeterminate
or not for although one of the courts affirmed that the measure cannot
be considered indeterminate because a maximum term of duration
(five years) is established, and because within that time, based on the
227
228
RELEVANT DECISIONS
judgment and report issued by the Interdisciplinary Technical
Committee and the administrative unit responsible for prevention and
treatment of minors respectively, the offender can be released or the
measure can be modified without exceeding the maximum term
prescribed by law. The other Court was of the opinion that the fact that
no specification is made with regard to the duration of internment
treatment imposed on the juvenile delinquents goes against Article 16,
first paragraph, of the Federal Constitution, because such measure
must be adjusted to the degree of social rehabilitation experienced by
the minor, in accordance with Article 60, section III, of the LTMI for the
Federal District.
Thus the point of contradiction involved determining whether it
is legally correct to impose on the juvenile delinquent an internment
measure of between six months and five years duration. The Supreme
Court made it evident that, although it is true to say that in the case
of juvenile delinquents, the purpose of the treatment measure is to
avoid repeated violation of the law —which is why the measures are
of a therapeutic, educational, and guiding nature—; nevertheless,
given that they imply the deprivation of freedom legal and
constitutional rights must be respected in conformity with the
regulations of criminal Law without overlooking the principle of legal
security.
Because this treatment measure is of a penal nature, it involves
abiding by the protections of criminal law, in accordance with which,
being juvenile delinquents, it is necessary to admit that the security
and treatment measures are for a rehabilitating purpose, and are
applied to guide and redirect the conduct of the minor for him to be
readmitted into society. In this sense, the internment of the minor, as a
measure of intimidation, is inadequate because given the immaturity
of the minors they do not always have the conscience necessary to
feel threatened by the legal norms, and such measure can also prove
counterproductive to their dignity if the offenders are used as an example
to admonish potential offenders.
For that reason, the First Chamber determined that the imprisonment
(deprivation of the freedom) of juvenile delinquents should be considered
a special prevention measure, with a clear educational purpose, in
principle, but also seeking a complementary dissuasive effect in the
social readjustment of the minor. In this sense, it should be recalled
that under the theory of special prevention, the purpose of punishment
is avoiding the commission of later crimes by the offender, implying
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that special prevention has a dissuasive character at a particular level,
and is aimed at rehabilitating and re-socializing the individual that has
infringed the law.
The Chamber considered that the impact of the treatment measure
must be a preventive factor demanding careful selection of the most
suitable measure and, whenever the internment of the juvenile
delinquent results necessary, it should seek to have a greater
dissuasive effect, and such measure must be applied with caution
given that isolation and social separation of the minor must be seen
as a last resort.
The First Chamber added that the imposition of the security measure
involving the internment of the minor at a treatment center, although
strictly not a sentence, cannot be excluded from prevailing rules on
the matter of individualization of sentences, taking into account that
such measure finally constitutes a deprivation of the freedom of the
juvenile delinquent. Although the Detention Center for Minors is not
properly a judicial authority, it cannot escape from the obligation of
individualizing the internment treatment measure, for it does not suffice
to generically indicate a minimum and a maximum term to assume that
the right to legal certainty is fulfilled in relation to the precise
determination of the time in which the juvenile delinquent is deprived
of his freedom.
The Chamber concluded, based on the fact that the application
of such inter nment treatment measure must be preceded by
consideration of the report prepared by the Interdisciplinary Technical
Committee based on the bio-psycho-social diagnosis of the youngster,
such circumstance does not justify that the duration of internment be
indicated in an indeterminate way between a minimum and a
maximum. As a deprivation of the freedom of a minor, this measure
should be individualized and determined with the greatest possible
precision, based on the elements provided in the judgment of
the aforementioned technical committee. All this, regardless of the
authority of counselors to release the minor from the measure imposed
in the event that new evaluations should come to light indicating that
the minor has been rehabilitated and is fit to reenter society, in terms
of Article 61 of the LTMI for the Federal District and the whole of the
Republic for federal crimes. 110
110
Ruling 1a./J. 68/2005, ib., p. 196.
229
The Ministry of Health may classify chemicals
as psychotropic or narcotics, based on the
international standards signed for such purpose,
provided that such standards are in conformity
with law currently in effect in our country
Amparo under review 1756/2004. June 1, 2005. Opinion delivered
by Justice José de Jesús Gudiño Pelayo.
Registration number:70
The plaintiff opposed Articles 194 and 193, section I, of the Federal
Penal Code (CPF), and Articles 244, 245, section III and 246 of the
General Health Law (LGS), alleging the violation of the rights contained
in Articles 14, 16 and 19 of the Mexican Constitution, in relation to
Article 73, sections XVI and XXI and Article 89, section I.
The First Chamber of the Supreme Court indicated, firstly, that
Article 193 of the CPF contemplates that conducts relating to narcotics
and psychotropics are punishable. Thus the conduct attributable to
the plaintiff, if related to pseudoephedrine, a substance considered
psychotropic, is punishable regardless of whether, under the General
Health Law, it is considered a health problem as a result of being
listed as one of the substances under section III of its Article 245, which
is why Article 193 of the CPF is not considered detrimental to the
principles inscribed under Article 14 of the Federal Constitution.
Moreover, the Chamber affirmed that the fact that the District Judge
has determined that Articles 194, section I, and 195 bis of the CPF
regulate the same conduct did not immediately imply that the two
provisions were incongruent. The fact that possession and transport is
contemplated in the second of the indicated numerals is conducive to
the perpetrator of the alleged offense drawing benefit from being the
author of an attenuated crime. What is more; the difference between
231
232
RELEVANT DECISIONS
the two is not based on the fact that one allows the conduct and the
other sanctions it, for a punishment is contemplated in both cases.
The Chamber observed that in order to solve the problem
surrounding the unconstitutionality of Article 245, section III, of the
LGS, it was not necessary to analyze such precept in an isolated manner
but in relation to numerals 244 and 246 of the same law, 193 and
195 of the CPF, and the Narcotics Convention (1961); Vienna
Convention on Psychotropic Substances (1971) and the United
Nations Convention Against the Illegal Traffic of Narcotics and
Psychotropic Substances (1988). The Chamber then indicated that the
complete contents of the aforementioned laws and treaties mean that
the objectives that brought on the amendments to Article 246 of LGS
granting powers to the Ministry of Health to issue lists specifying the
psychotropic substances, was for the provisions under such law to agree
with international legal provisions as they are binding in our country, in
accordance with constitutional Article 133. Moreover, if pseudoephedrine
is reputedly a psychotropic substance under United Nations Convention
Against the Illegal Traffic of Narcotics and Psychotropic Substances, in
keeping with the objectives of aforementioned Article 246, the Ministry
of Health, by means of the General Director of Health Consumption,
validly issued the listing amending group III of Article 245 of the LGS,
whereby pseudoephedrine was added as a prohibited psychotropic
substance. 111
Thus, the Chamber ruled that, in addition to the scope
contemplated under constitutional Article 133, there are express
norms in existence under Mexican law that, on the one hand,
authorize remission to the terms of Conventions such as the one in
question —Article 193 of the CPF to be precise—, and on the other
hand, although the Ministry of Health issued a listing adding
pseudoephedrine as a psychotropic substance in Article 245 of the
LGS, this was because the Congress, upon reforming mentioned
law, granted powers to the Ministry. This is why it is permissible for
the listings to serve as a basis to determine the nature of the substances
whose illicit possession is penalized given the authorization granted
by the Congress in exercise of its authority. In conclusion, if the
legislature, in order to define a crime, based itself on other legal
orders such as the LGS and international treaties, Article 73, sections
XVI and XXI, of the Federal Constitution are not infringed.
111
Ruling 1a. LXXXIV/2005, ib., August 2005, p. 304.
Article 23 of the Federal Economic Competition
Law does not breach the principle of hierarchical
subordination of all decentralized bodies
belonging to the centralized Federal Public
Administration, as established under Article 90
of the Federal Constitution
Amparo under review 167/2005. Compañia Cervecera del Tropíco,
Sociedad Anónima de Capital Variable. June 3, 2005. Opinion
The litis involved defining whether Article 23 of the Economic
Competence L aw (LFCE), by establishing the powers of the
Federal Competence Commission (CFC) and the autonomy in issuing
final decisions, violates the principle of hierarchic subordination of
the bodies that comprise the Public Administration and, with it, the
supremacy of the Federal Constitution.
The Second Chamber considered it unfounded to maintain that
the creation of the decentrelized agency of the public administration,
as in the case of the aforementioned Commission, endowed with
the functional autonomy to carry out its work, results contrary to the
Constitution as a result of not being hierarchically subordinate to
the Ministry of Economy or to the President. That is not only incorrect
but also incongruent given that such autonomy implies the attainment
of clearly defined objectives for the protection of the economic
administration of the State, without altering the administrative regime
of hierarchic subordination of the decentralized agency.
The Court added that, to attend to matters of their authority, the
Secretariat of the State may have decentralized administrative bodies
hierarchically subordinate to it, and has the authority to resolve on
determined matters in the territorial and functional scope designated
233
234
RELEVANT DECISIONS
by the legislature. As for the Ministry of Economy, an integral part
of the centralized administration in terms of Article 26 of LOAPF,
one of its decentralized bodies is the CFC, created by Congress in
the Economic Competence Law (LFCE), regulated by Article 28 of the
Federal Constitution covering monopolies and free commerce. For
the Second Chamber , Articles 1, 2, 3, 23, and 24 of the LFCE indicate,
among other things, the legal nature of the CFC is a decentralized
agency with technical autonomy and executory powers, whose object
it is to prevent, investigate, and combat monopolies, monopolistic
practices, and concentrations. The Chamber added that such legal
nature is accredited from the integral analysis of numerals 8, 9, 10,
11, 13, 16, 17, 18, 19, 30, 31, 35 and 39 of the LFCE.
However, as mentioned, the Chamber observed that such functional
autonomy and power to dictate the related final resolutions, should
not alter the hierarchic subordination established by LOAPF. Its internal
regulations, specifically Articles 2., subsection C, section I, and 5,
section XVI, establish as a power of the Head of the Secretariat to
issue general resolutions based on the LFCE and other ordinances
whose application, supervision and compliance is the responsibility
of the Ministry of Economy. On the other hand, Article 22, section V, of
the Internal Regulations of the Federal Competence Commission
(RICFC), establishes the authority of its President, who legally
represents the Commission in terms of Article 20, to send the Ministry
of Economy, once authorized by the Ministry of Finance and Public
Credit, the proposed budget to integrate into the overall budget of
that agency. Likewise, Articles 26 and 28 of the LFCE, establish the
designation of the commissioners and the President of the aforementioned
Commission by the President.112
The Chamber thus specified that the hierarchic subordination
of the CFC to the Ministry of Economy and the President is to subsist,
because its operation is guaranteed and controlled in favor of the
citizens and of the public administration given that any decision-making
by this Commission is identified with the powers of the Ministry
of Economy. These very powers and the power of the Ministry of
Economy over the commission through general resolutions are laid
down as Law, and its control is exercised by the Executive through
its directive bodies.
112
Ruling 2a. XCVIII/2005, ib., September 2005, p. 532.
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Furthermore, the Chamber indicated that, when the Congress
established, in Article 23 of the LFCE, the CFC as a the decentralized
agency of the Ministry of Economy, it did not incur in a violation to
constitutional Article 90, for no entity is created different to the
decentralized agencies of the public administration. Rather, the hierarchic
subordination of the aforementioned Commission in relation to the
Ministry of Economy remains even with the functional and operative
autonomy granted by the Congress. The constitutional and legal order
in question brings on the authority for the Congress to establish the
legal bases for the effective functioning of such decentralized bodies.
For that reason, Article 23 of LFCE does not violate Articles 1 and 14
of Federal Constitution, since the CFC itself has been legally established
and is endowed with powers to fulfill the objective for which it was
created and, therefore, its actions are based on and motivated by the
aforementioned constitutional and legal provisions.
Moreover, the Chamber advised that the principle of constitutional
supremacy is not compromised with the determination of Article 23 of
the LFCE upon establishing functional and operational autonomy or
through the issuance of the final resolutions by the Commission. The
principle in question consists of imposing the Federal Constitution as
the most important norm in the Mexican legal system. Moreover, if
Article 23 of the LFCE does not contravene Article 90 of the Federal
Constitution, then such principle is not violated either.
In labor suits, the transitor y attachment
issued in the first place has preference,
regardless of any award acknowledging
another employer debt first
Collegiate Court of the Eight Circuit and the First Collegiate Court
of the Fifteenth Circuit. June 3, 2005. Opinion Delivered by Justice
Margarita Beatriz Luna Ramos.
In the direct amparos resolved by the Circuit Collegiate Courts in these
contradictory rulings, essentially equal legal matters were examined
(the preference applicable whenever various attachments are carried out
on the same property in a labor suit where the workers obtain a
favorable decision); and different legal positions were adopted. The
Fourth Collegiate Court of the Eightn Circuit was of the opinion that
the worker in favor of whom the property is attached for precautionary
purposes has preference to the payment of debt by the employer,
regardless of who has obtained a favorable decision, while the First
Collegiate Court of the Fifteenth Circuit ruled that preference must be
given to the party that first obtained a favorable decision in a labor
lawsuit, regardless of who has been favored by the attachment of the
property. The diverging rulings were derived from the examination of
the same elements. The interpretation of Article 966, Section I, of the
Mexican Labor Law [LFT], among other factors.
The concrete point of contradiction that the Second Chamber of
the Supreme Court was required to resolve involved determining who
holds preferential rights when various attachments are applied to the
same property in a labor suit —the party that obtains a favorable
decision first, regardless of whether the property is subsequently
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RELEVANT DECISIONS
attached for precautionary purposes, or the worker in favor of whom
the property was first attached, regardless of whether the favorable
decision is issued in his or her favor.
The ruling of the Supreme Court turned out to be similar to the
opinion expressed by the federal law enforcement authorities.
The Chamber emphasized that Article 966, Section I, of the LFT,
made it evident that whenever various attachments are carried out in
execution of a debt owed by the employer to an employer on the same
property, payment is to be made in consecutive order, and indicated
that the aforementioned article makes no distinction between
precautionary or definite attachments. The Chamber then considered
that the purpose of the precautionary attachment is to ensure that the
property of the defendant suffices to guarantee the payments claimed
by the worker or group of workers.
The Chamber added that the moment the precautionary attachment
is practiced on the property of the defendant, a right is generated in
favor of the worker, and the latter is subject to the condition that the
sentence be resolved favorably. This means that the precautionary
attachment does not generate an expected right but a subjective right
conditioned by the pronouncement of a favorable decision. This as soon
as these conditions are fulfilled, the legal effects come into force the
moment the property is attached for precautionary purposes as a
requirement for the labor debt to be executed.
The Chamber clarified that upon obtaining the decision favorable
to the interests of the worker, the subjective right ceases to exist for the
suspended condition again becomes effective, meaning that the money
owed to the worker or groups of workers in favor of whom the property
of the defendant was attached in the first place results preferential.
Consequently, Article 966, Section I, of the LFT, must be interpreted
in the sense that, whenever various attachments are carried out on the
same property, they are to be paid in fulfillment of the money owed by
the employer in the consecutive order in which such precautionary
attachments are carried out.113
113
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In the opinion of the Chamber, as well as discrediting the purpose
of the precautionary attachment, reasoning differently would have
implied leaving to the arbitration of both the parties and the Board of
Arbitration itself the issues surrounding the preference of the money
owed by employer, given that the labor suits could be justifiably or
unjustifiable prolonged without there being any reason whatsoever
for the worker in favor of whom the property was first attached to
suffer the consequences of such prolongation in a suit not attributable
to him.
In conclusion, the Chamber maintained that, if the precautionary
attachment instituted under the law is conducive to ensuring that the
property seized is not squandered and that the workers are thus able to
execute the decision pronounced in their favor, preference should
be given to the worker in favor of whom the property belonging to the
defendant was first attached.
Whenever there is a conflict of law between
penalizing norms prescribing the application of
more than one sanction, the judge may not divide
such sanctions
Resolution to Opposite Rulings 48/2005-PS. Between the Second,
Third, and Fifth Collegiate Criminal Courts of the First Circuit.
June 8, 2005. Opinion Delivered by Justice José de Jesús Gudiño
Pelayo.
The First Chamber of the Supreme Court was of the opinion that the
alleged contradictory rulings did exist and that the legal problem to
be examined involved determining whether the judge may divide the
penalties to be imposed on the offender under varions legal provisions
to ensure that the most beneficial of such penalties is applied.
The problem tackled by the Fifth and Second Collegiate Criminal
Courts of the First Circuit consisted of determining (in cases where
a conflict arises between two norms that each establish a sanctioning
parameter that goes from a minimum to a maximum) whether the
judge can, on the basis of the retroactivity principle and to the benefit
of the offender, create a third parameter other than the two originally
contemplated by the legislator, taking the minimum limit of one such
parameter and the maximum limit of the other. For its part, the Third
Collegiate Criminal Court of the First Circuit resolved the question as
to whether, in cases whereby the conflict of norms arises between two
provisions —each establishing a pecuniary and an corporal sanction—
the judge may, for the benefit of the aforementioned constitutional
principle, apply the monetary penalty contemplated in one norm and
the prison term contemplated under another.
The criterion of the First Chamber was based on the understanding
that, in conformity with the principle of legality or exact application of
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RELEVANT DECISIONS
the law in criminal cases, a judge may only apply the penalties expressly
contemplated in the law as a consequence of the perpetration of an
offense, and that this should be exactly in terms of that contemplated
by such legislation. This is established in the third paragraph of
constitutional Article 14, as follows:
In criminal lawsuits, it is prohibited to impose, by simple analogy or
even for a persuasive reason, any penalty not decreed by a law exactly
applicable to the offense in question.
In view of the above, the First Chamber was of the opinion that
in cases whereby the law prescribes the application of more than one
penalty as a consequence of the perpetration of an offense (for example,
one jail term corporal and one monetary fine), the judge is required to
apply such sanctions in the manner conceived by the law; that is to say,
as penalties to be applied jointly. The Chamber also considered that
whenever a conflict of laws between sanctioning norms arises, and upon
applying the principle of the most favorable law, the judge is required
to select the sanction which results most beneficial for the interest of
the offender, but in the exact terms contemplated by the law. Thus,
when faced with the perpetration of an offense and the sanctioning
norms in conflict prescribe the application of a specific set of penalties
to determine that "which is most favorable for the offender", the judge
may only choose between the two groups of penalties contemplated
by the law in each of the conflicting norms in order to arrive at the
sanction that results most beneficial to the offender.
From the above, the First Chamber inferred that, in the type of
circumstances in question, it cannot be considered that, attending to
the principle of the law most favorable to the offender, the judge should
be empowered to divide the sanctioning provisions in conflict and
select those which, considered in isolation, result most favorable to
the offender. The contrary would involve allowing the judge to create
a new penalty other than those contemplated by the two legal norms
in conflict, based on the elements each of them, which would go against
the principle of exact application of the law for criminal purposes.
The First Chamber concluded that, in the aforementioned
circumstances, the work of the Judge, upon applying the principle
of the law most favorable to the offender, is limited to selecting one of the
sets of penalties contemplated by the law in each one of the norms in
conflict. This implies that a new set of penalties should not be created
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based on those contemplated in the conflicting norms.114 The Chamber
also specified that, in the cases whereby the conflicting norms establish
related prison terms and monetary penalties, the judge must decide
which set of penalties results most favorable for the offender, based
firstly on the quantum of the prison term, given that under the Mexican
constitutional legal system greater hierarchy is granted to the principle
of personal freedom than to that of property, as indicated under
Article 1 of the Federal Constitution, which reads as follows:
Slavery is prohibited in the United Mexican States. Slaves from abroad
entering the national territory shall, by that mere fact, acquire their
freedom and the protection of the law.
114
243
Effects of the rescission of purchase-sale
(application of Articles 1840 and 2311 of the
Federal District Civil Code)
Resolution to Opposite Rulings 5/2005-PS. Between the Third, Fifth,
and Fourteenth Collegiate Civil Court of the First Circuit. June 8,
2005. Opinion Delivered by Justice Olga Sánchez Cordero de García
Villegas.
The First Chamber of the Supreme Court observed that the case at hand
involved a contradictory rulings between the Fourteenth Collegiate
Civil Court of The First Circuit and the Third and Fifth Collegiate Civil
Courts of the First Circuit. These courts examined essentially equal
legal questions and different conclusions were reached. The litis put to
the consideration of the Fourteenth Collegiate Civil Court of the First
Circuit related to a purchase agreement whereby the respective parties
had handed over the item and part of the price in order to establish
the effects of the contract, in conformity with the interpretation of Articles
1840 and 2311 of the Federal District Civil Code (CCDF). The essential
characteristic of the penal clause mentioned under the aforementioned
numeral was its sanctioning nature in face of the non-fulfillment or
different fulfillment of the obligation agreed, while the scope of Article
2311 only referred to the restituting effects of the benefits granted by
the contracting parties without being considered a penalty or a sanction.
In this respect, the Collegiate Court concluded that such precepts do
not exclude each other and that therefore the return of the item or its
price, as well as the repair of damages, represent the natural consequence
of contract termination. This is the case because it is thus is contemplated
under the law, and it can also be agreed in a penal clause that seeks to
determine in the contract the compensatory damages caused by the
non-fulfillment of the obligation in question.
245
246
RELEVANT DECISIONS
In the cases heard by the Third and Fifth Collegiate Civil Courts,
it was determined that although Article 1840 of the CCDF establishes
that the contracting parties may stipulate a penalty in case an obligation
is not fulfilled or is fulfilled in a manner other than that agreed, this
provision is generic for it refers to any kind of contract whenever no
specific norm exists, as in the case with of the termination of a purchase
agreement in installments, for such termination is governed by a special
norm, contemplated under Article 2311 of the aforementioned
regulations, which establishes the related effects. Thus, in conformity
with Article 11 of the code, it is necessary to adhere by the specific
norm provided, under wich the judge has the power to analyze whether
a penal clause in a contract imposes obligations more burdensome
than those contemplated in Article 2311 and, if that is the case, declares
their nullity.
Upon resolving, the Court indicated that Article 1840 of the CCDF,
makes it evident that the responsibility for the non-fulfillment of
obligations generates the payment of damages, which may be previously
regulated by the parties through the stipulation in a clause of the
contract of a sanction. This agreement, which allows the parties to
establish in advance the quantification of damages to be paid in cases
of non-fulfillment of obligations contracted, tends to be known as "penal
clause", and its only limit is that it should not exceed the value or
amount of the principal obligation. The First Chamber added that:
Article 2311 of the aforementioned regulations establishes that, if the
sale is canceled, the seller and the buyer must be restituted the established
benefits. However, any seller who hands over the thing bought, may
demand that the buyer pay the price established by experts for its use,
as well as any compensation established by such experts in order to
cover the deterioration suffered by the thing in question. Moreover,
whenever the buyer has paid part of the price, he is entitled to the
interest lawfully accrued on the amount handed over. Any agreements
that impose more burdensome obligations on the buyer than those
expressed will be declared null and void.
In the opinion of the First Chamber, the interpretation of the
last paragraph of Article 1840, makes evident the possibility that
the parties may agree to the amount of an obligation derived from the
non-fulfillment of a contract. But a clause in this sense can be annulled
if it results more burdensome than those stipulated in Article 2311, for
the law, contemplating that one of the contracting parties may abuse the
necessity of the other and impose disproportionate charges, protected
such parties by means of the annulment of excessive clauses. Thus,
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the stipulation of the conventional penalty contemplated in Article
1840 of the CCDF does not contradict Article 2311, given that the will
of the parties serves to establish in advance a benefit guaranteeing
the damages that could be derived from the non-fulfillment of the
obligations agreed. The only limitation is that it should not exceed
the principal obligation either in value or amount.
Finally, the Chamber considered that although the return of the
thing or price, or both, may, if applicable, represent one of the natural
consequences of the annulment of the purchase agreement, it is also
true that, if such annulment is due to the non-fulfillment of obligations,
the offending contracting party must also repair and compensate the
damages caused to his or her counterpart, as established under the law,
or as previously agreed in a penal clause whose function is to conventionally
determine the compensatory damages incurred in case of non-fulfillment
of an obligation by way of an amount considered by the parties to be
equivalent to the benefit that they would have obtained had such
obligation been fulfilled. However, whenever the benefits stipulated in
the contract are part of the same action, the judge, by means of the
compensation for damages and as part of the study to be undertaken
of the elements of such action, must examine the legality of the claims
made by the plaintiff in relation to the provisions contained in the penal
clause, for they are of public interest.115
115
Ruling 1a./J. 71/2005, ib., August 2005, p. 142.
The granting of suspension of social security
fees with respect to those derived from the
application of Article 237 of the Social Security
Law, effective as of July 1, 1997, is governed
by Article 135 of the Amparo Law.
and First, Second and Fourth Collegiate Courts of the Twelfth Circuit.
June 10, 2005. Opinion Delivered by Justice Guillermo I. Ortiz
Mayagoitia.
The Third and First, Second and Fourth Collegiate Courts of the
Twelfth Circuit, upon resolving the motions for admission of denied
appeals instituted by the authorities responsible for the Mexican Social
Security Institute (IMSS), ruled against the sentences issued by the
District Judge on the cases of suspension derived from the related
direct amparo proceedings. The plaintiff basically sought provisional
suspension of the reforms decree of the Social Security Law (LSS)
effective as of July 1, 1997, specifically its Article 237, establishing the
incorporation of workers engaged in field work into the obligatory social
security regime, as per Section I of Article 12 of the aforementioned
law. The requested provisional suspension of its effects requiring
the payment of social security contributions and alleged that the
authorities of the Mexican Social Security Institute (IMSS) sought to
exercise measures of pressure to achieve this, such as the confiscation
of goods —or attachment orders— deprivation of money held in bank
accounts, performance of audits, application of fines, and other
measures.
The plaintiff was granted provisional suspension and continued
to pay Mexican Social Security Institute taxes or contributions in the
form and percentages applied through June 30, 2004. The executing
authorities were not to attach property belonging to the plaintiff or
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250
RELEVANT DECISIONS
freeze funds held in bank accounts in order to guarantee the possible
differences that could arise as regards the contributions under the reforms
to the law under challenge.
In order to resolve on the legality of the challenged law, the Collegiate
Courts analyzed whether the terms under which the provisional
suspension requested was granted are detrimental to the social interest,
whether public order provisions are contravened and, thus, whether
the requirements contemplated in Section II of Article 124, of the
Amparo Law (LA) are fulfilled.
The aforementioned courts reached different conclusions. The Third
Collegiate Court of the Twelfth Circuit considered that the concession
of the provisional suspension requested meant that public order
provisions were in fact contravened, which is detrimental to the social,
interest for such measure was granted "against the consequences of
the acts of application of the numerals deemed to be unconstitutional,
seeking not to apply such provisions to the detriment of the plaintiff".
Thus, taking into consideration that "Section II, of Article 124, of the
Amparo Law, among other requirements conducive to suspending
the act contested includes a specification that no detriment should be
caused to the social interest and that public order provisions should
not be contravened", it was advised that these are aspects that Articles
1, 2, and 3, of the LSS, "not only contemplate, by declaring that
the norms of the legal systems to which they belong are general to the
whole of the Republic, but in fact also specify that social security
includes the right to health, medical assistance, protection of the means
of subsistence, and the social services necessary for individual and
collective welfare, and also define that the basic instrument to achieve
this is precisely represented by the Mexican Social Security Institute."
It was concluded that the concession of the provisional suspension
sought for the effect determined by the District Judge is incorrect, "for
it is evident that such a suspension affects the public order and is
detrimental to the social interest, aspects which are contemplated in
the aforementioned Section II of Article 124, of the Amparo Law, upon
permitting by exclusion, the plaintiff to continue making his or her
employee-worker contributions to the Mexican Social Security Institute
in the form and according to the percentages applied up until June
13 of the year in course, and for the money held in bank accounts not
to be seized, or for audits not to be carried out or fines to be imposed
by the Institute; undoubtedly to the detriment of the legal revision
and auditing powers held by the Institute in order to obtain the
necessary funds by means of worker-employer contributions and whose
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deprivation would undoubtedly directly affect its assistance functions
and thus the public order and social interest".
The other courts held a contradicting opinion; that is to say, that
such measure does not imply any detriment to the provisions contained
in Section II of Article 124, of the LA. In this sense, the First Collegiate
Court of the Twelfth Circuit was of the opinion that by granting the
suspension "for purposes of ensuring that things remain as they
are, that is to say, for the plaintiff to continue making his workeremployee contributions to the Mexican Social Security Institute in the
manner practiced up until the present and applying the same percentages
up until June 31 (sic) of year in course, and to ensure that the money
held in accounts is not attached, confiscated, seized, taken, or deprived,
or that audits are carried out or fines are applied", it is made evident
that by means of this measure, the collection of Mexican Social Security
Institute contributions is not impeded "for the suspensional measure
decree is not for purposes of ensuring that the plaintiff should cease to
make his social security interest quotas contributions, but to ensure
that he should continue to do so in the manner practiced up until the
thirty-first (sic) of June of the year in course".
For its part, the Second Collegiate Court of the Twelfth Circuit
ruled that it does not suffice to consider that the suspension concession
contravenes the provisions of public order, based on the fact that the
obligation to pay worker-employee quotas is derived from a general
interest and public order law, "for it is necessary to remain aware that
all laws share such characteristics to a larger or a smaller degree and
that, under such a perspective, an equivocal conclusion could be reached
in the sense that any protection measure conducive to bringing to a
standstill the execution of an act based on such laws should be denied".
The Court also found and that "in order to validly infer the contents
of the notion of public order, it is necessary to evaluate the situations
that the suspension of the act contested could bring on; that is to say,
whether such measure would mean that the collective would be
deprived of a benefit granted under the laws or that a damage could
be caused that would otherwise go unfelt". In this context, it was
determined that "if the responsible authorities, as the current appellants,
did not provide probative elements demonstrating that the concession
of the protection measure means that the performance of the social
security mission is impeded from being carried out as requested, there
is no reason to deny the plaintiff the provisional suspension sought,
for such suspension does not impede the Mexican Social Security Institute
from obtaining the resources that comprise its patrimony in a timely
251
252
RELEVANT DECISIONS
manner because the protection measure does not require an abstention
from charging employee-employer contributions from the taxpayers
in general and, above all, because the aforementioned suspension does
not nullify the obligation to make the payment of such contributions, but
only permits continued payment in the manner exercised up until June
30 of the year in course".
In turn, the Fourth Collegiate Court of the Twelfth Circuit was of
the opinion that the concession of such a measure does not contravene
that established in Section II of Article 124, of the LA given that "no
detriment to social interest is sought, which —in the case at hand—
consists of the Mexican Social Security Institute complying with the
purposes for which it was created; that is to say, the rendering of social
security services for it is not deprived from obtaining the workeremployee contributions that are necessary for is operation (...) in any
manner whatsoever, given that the provisional suspension granted to
the amparo seeker was not for the latter to fail to comply with his
obligation of making the aforementioned contributions".
In light of the circumstances, the Second Chamber of the Supreme
Court was required to settle this concrete point of contradiction: whether
the provisional suspension requested with respect to the consequences
of the acts of application of Article 237, of the LSS, effective as of July
1, 1997, was admissible or not. The Second Chamber resolved that
the consequences of the obligatory affiliation of payroll, temporary,
and permanent workers involved in field work and referred to under
Article 237, of the LSS, involves the payment of the respective social
security contributions by the employer to the Mexican Social Security
Institute, in the form and terms established under the law and in
conformity with the modes established for such purposes by the
Affiliation Regulations. Thus, given that such taxes are considered
contributions, the general rules contained in Article 124, of the LA,
are not valid to decide on the granting of the suspension, but, rather,
the special norm established in numeral 135 of such law, in conformity
with which the suspension may be discretionally granted against the
collection of such contributions following deposit of the respective amount
to ensure that the effects of the protection measure are effective. The
understanding is that such a deposit cannot be demanded when it is
evident that the sums to be collected exceeds the possibilities of the
plaintiff, whenever a guarantee of the tax interest has previously been
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constituted before the executing authorities or when the party in
question is not the taxpayer obliged to make payment directly. In such
which circumstances, the tax interest is to be ensured by any of the
means of guarantee permitted by the applicable tax authorities.116
116
253
Key employees are those who exclusively and
permanently carry out auditing activities and have
budgetary dependence on the body entrusted
with such duties, regardless of the formal name
given to their position
Resolution to Opposite Rulings 45/2005-SS. Between the Third and
Eleventh Collegiate Labor Courts of the First Circuit. June 10, 2005.
Opinion Delivered by Justice Guillermo I. Ortiz Mayagoitia.
The point of contradiction consisted of determining whether, in terms
of subparagraph d), of Section II of Article 5, of the Federal State Workers
Law (LFTSE), government workers who carry out auditing tasks should
be considered key personnel regardless of the title given to the job
they perform.
The Second Chamber of the Mexican Supreme Court examined
Articles 4, 5, Section II, subparagraph d), and Article 20, of the LFTSE,
and deducted from such an examination that State workers can be
divided into two categories —key employees and regular employees.
In this sense, among others, key employees are considered to be the
workers of entities or agencies of the Federal Executive governed by
subsection B of Article 123, of the Mexican Constitution who, based
on the catalog of respective positions, carry out auditing tasks as
general auditors or sub-auditors. This also incluides technical personnel
responsible for carrying out such tasks exclusively and permanently
provided that they report to the comptrollers offices or auditing
departments for budget purposes.
As far as the Second Chamber was concerned, the above made
evident the fact that, in order to determine when a worker of the
entities or agencies belonging to the Executive branch, governed by
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256
RELEVANT DECISIONS
subparagraph B of constitutional Article 123, is considered to be a key
employee, it is necessary to evaluate such a worker’s responsibility in
conformity with the positions catalog prepared jointly by the entity or
agency in question and the related union. The Chamber added that,
in the case of auditing activities, it is also necessary to consider the
hierarchical level of the government servant, or whether the personnel is
technical personnel, and whether such responsibilities should be carried
out exclusively and permanently. Such workers should be dependent
for budget purposes on the controller’s offices or audit departments of
the agency or entity in question.
The Chamber examined the report prepared on December 13,
1982 by the First Joint Work Commissions and the Second Section of
Legislative Studies, the basis of the initiative presented by the President
of the Republic to reform Articles 5 and 20, of the LFTSE among
others: It also looked at the decree published in the Official Gazette
dated January 12, 1984, by means of which Section II of Article 5, of
the LFTSE, was reformed, along with the report prepared by the First
Joint Work Commissions and the Second Section of Legislative Studies,
dated December 29, 1983, the basis of the final reform. From this
legislative background, the Chamber concluded that, in conformity
with Article 5, Section II, of the LFTSE, current up until January 12,
1984, key employees were considered to be the workers of the
Executive branch, agencies, and entities governed by subparagraph B
of constitutional Article 123, among others, who according to the
respective catalog of positions, carried out auditing functions, as well
as the personnel assigned directly or immediately to those responsible
for carrying out such functions. All things considered, given that such
a concrete specification of the functions that comprised the status of
key personnel generated confusions and differences of related criteria,
the legislator was of the opinion that it was necessary to specify "with
all due clarity and expressly the different hierarchical levels of the key
positions and responsibilities attributable to such positions, qualifying
them as ‘general and permanent’". Thus, the reform made to the
aforementioned law in order to establish the key positions, referred
not only to the activities carried out, but also to the hierarchical level
attributable in conformity to the catalog of positions "or its equivalent",
as well as to the exclusivity and permanence in the exercise of such
responsibilities.
The Chamber then specified that, in accordance with subparagraph
d) of Section II of Article 5, of the LFTSE, in order to determine if a
worker belonging to the agencies or entities governed by subparagraph
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257
B constitutional of Article 123, is considered to be a key employee, it
is first necessary to establish whether, in accordance with the catalog
of positions of the agency or entity in question, such worker carries
out auditing activities, either at general auditor or general sub-auditor
level. When such activities are carried out exclusively and permanently.
It is also necessary to accredit the fact the worker reports to the
comptrollership offices or respective auditing departments for budgetary
purposes. The formal title of the position is not what determines its nature.
The Second Chamber clarified that, in order to consider that the
government servant depends for budget purposes on the comptrollership
offices or respective auditing departments, it is necessary to demonstrate
that his or her salary is charged to the budget of the organization that
is legally responsible for carrying out the auditing activities. The mere
fact that the government servant is assigned to an area which is given
the auditing responsibilities, among others, does not suffice to accredit
such a situation.117
117
Prescription of the crime of genocide
Appeal No. 1/2004-PS. Derived from power of attraction 8/2004-PS.
Officer of the Federal Law Enforcement Authorities assigned to
the Office of the Special Attorney for the Attention to Events probably
constituting Federal Offenses committed directly or indirectly by
Government Workers against the Persons linked to Social and Political
Movements of the Past and against Federal Law Enforcement Authorities
Agency Officer assigned to the Second District Court for Federal Penal
Processes in the Federal District. June 15, 2005. Opinion Delivered
by Justice José Ramón Cossío Díaz.
On July 22, 2004, the officer of the Federal Law Enforcement Agency
assigned to the office of the Special Attorney for Attention to Events
probably constituting Federal Offenses committed directly or indirectly
by Government Workers against Persons Linked to Social or Political
Movements of the Past instituted legal proceedings against Luis
Echeverria Alvarez and Mario Augusto José Moya y Palencia, among
others, for being allegedly responsible for the perpetration of the crime
of genocide, as contemplated in Article 149 bis, of the Penal Code for
the Federal District and Territories for Civil Purposes and for the whole
Republic for Federal Purposes, effective in 1971.
The Second District Judge for Federal Criminal Processes heard the
matter in the Federal District and determined to declare extinguished
the legal proceedings with respect to the crime of genocide in favor of the
defendants by decreeing the dismissal of the case. Dissatisfied with
this determination, the Federal Law Enforcement Authorities and
Prosecutor assigned to the aforementioned Court filed an appeal to
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be heard by the Fifth Unitary Penal Court of Circuit One. Having held
the public hearing and with the pronouncement of the respective
decision still pending, the Attorney General of the Republic requested
that the First Chamber of the Supreme Court should exercise its power
of attraction and should hear the aforementioned appeal.
The Court had the power to exercise such authority and, with
regard to the accusations presented by the Federal Public Prosecutor’s
Office, recalled firstly that the guarantee of non-retroactivity contemplated
under Article 14 of the Federal Constitution prohibited retroactive
application of the law against any individual. It also recalled that the
principle in question protects individuals both from the legislative
authorities and from the law-enforcement authorities, establishing
that retroactive application of the law operates for criminal purposes
in the substantive aspect and, to a lesser degree, in the procedural
aspect.
The First Chamber added that the above-mentioned principle
also governs international treaties. Moreover, the President of México
had signed, ad referendum, the Convention on the Statute of Limitations
on War Crimes and Crimes against Humanity on 3 July, 1969,
subsequently sent —along with the respective Interpretative Statement—
to the Senate for consideration; which was duly approved in December
2001. The Court indicated that, although such international instrument
is referred to as Convention, it is really a Treaty in terms of Article 2,
section 1, of the Law of Treaties. As for the interpretative statements,
they clarify or indicate the impact of the Treaty upon domestic law, so they
cannot "exclude or modify" the legal effects of a Treaty for a signatory
State in the same way as the "reservations" can.
Thus, if the intention of the Convention is to govern over crimes
committed independently of their time of occurrence, the interpretative
statement prepared by the Mexican State would actually modify the
provisional scope of the Convention —generating the requirement to
qualify it as a "reservation" applicable to it. However, such "reservation"
would lead to that already established under constitutional Article 14.
Therefore, even in this case, it could not be declared invalid or not
applicable as a result of contravening "the objective and purpose of
the Treaty" for this would indirectly mean the non-application of Article
14 of the Constitution.
Moreover, the First Chamber ruled that Articles 110 and 111 of the
Criminal Code in force at the time of the events established that not all
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procedural acts can work as a Statute of Limitations but only the actions
carried out by the Public Prosecutor’s Office or the judicial authorities
as part of the preliminary investigation and with regard to the defendant
aimed at investigating the events from which the offense attributed to
the defendants originated, and not any other actions, provided such
actions are not undertaken after than half the related term of effectiveness
has elapsed, as otherwise it would only be interrupted with the
detention of the defendant.
The First Chamber observed that the preliminary investigation
initiated in June 2001 was not fit to interrupt the Statute of Limitations
because, though it might be considered a procedural act carried out
by the public prosecutor’s office to investigate the events that comprise
the crime of genocide in question along with the defendants, such
action had been undertaken after half the aforementioned term of
effectiveness had elapsed. The records of criminal proceedings
848/71 at the Federal District Second Criminal Court, and the preliminary
investigation which generated such proceedings and brought on appeal
39172, derived from the aforementioned proceedings at the Sixth
Chamber of the Federal District Superior Court of Justice, did not represent
grounds to interrupt the aforementioned term. This was attributable
to the fact that the documentation in question did not refer to the
preliminary investigation and the defendant but to events other than
those reported. Consequently, the objective was not to bring an offense
to light or the identification of the offender.
Furthermore, the allegation in the sense that the judge hearing
the case had denied the value of the evidence kept in single copy form
for preliminary investigation 1863/71, instituted on 11 July 11, 1971,
was also unfounded because the documentation in question did not
represent grounds to accredit the existence of procedural acts that might
have interrupted the term of effectiveness of the Statute of Limitations
on the legal action for the crime of genocide, considering that reference
was made therein to supposed processes undertaken during the
investigation in question, but no documentation supporting such
processes actually existed.
With regard to the regular copy of the court records dated
November 10, 1982, through which it was decided not to institute
legal proceedings and file the investigation, the Chamber determined
that it did not represent grounds to interrupt the term of the
aforementioned Statute of Limitations, as erroneously maintained by
the Public Prosecutor’s Office. The purpose of such records had not
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been to investigate the acts constitutive of the crime or the defendant.
Instead, their purpose was for the prosecutor investigating and pursuing
crimes to make known his decision not to exercise legal action with
respect to the events related to the investigation, for the Statute of
Limitations was considered to have come into force.
The arguments put forward by the plaintiff in the third section of
the second indictment resulted ineffective, for the Federal Public
Prosecutor’s Office maintained that prescription was of a procedural
and not a substantive nature —thus reinforcing the viewpoint that
currently effective procedural norms were required in the case at hand,
and not those in effect at the time of the events. However, this was
irrelevant from the perspective of the First Chamber given that the
prescription of a criminal suit is essentially regulated in the same manner
both in the Federal Penal Code effective at the time of the events and
under the current Federal Penal Code.
The grievance calling to doubt the independence of the instances
responsible for procuring justice at the time the events that brought on
the charge was also groundless for the following reasons: the arguments
put forward by the Federal Public Prosecutor’s Office were primarily
aimed at calling to doubt the independence of the bodies responsible
for procuring justice at the time of the events. They lacked the autonomy
necessary to prosecute crimes perpetrated by the defendant given Luis
Echeverría Álvarez’s position as President of México and the pervading
situation in the country at that time. This meant that the victims and
their relatives were deprived of the right to effective criminal protection
and to due procurement and administration of justice and retribution for
damages, among other things. This was not considered valid given
that constitutional Articles 21 and 102 grant the Public Prosecutor’s
Office the authority to investigate, as well as the right to monopolize
criminal action and prosecution on behalf of society. In these
circumstances, although it is true that the Public Prosecutor’s Office has
and had a monopoly over the exercise of criminal action, it is also true
that such justice procurement system adhered to the mandate established
under the aforementioned constitutional articles and could not contravene
any individual liberty for the constitutional norms cannot jeopardize
the rights contemplated under other identical norms given that no
contradiction between them is permitted to exist.
For the same reasons, the Chamber considered ungrounded the
motives for appeal put forward owing to which the Public Prosecutor’s
Office indicated that, because the determinations it reached in a
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preliminary investigation were unassailable and not subject to any
judicial control whatsoever, there was a violation of Articles 3, 8, and
10 of the Universal Human Rights Declaration; Article 2, section 3,
subparagraph A), B), and Article 14, section 1 of the International
Covenant on Civil and Political Rights; V and XVIII of the American
Declaration on the Rights and Duties of Man, and Article 4, section 1,
in fine, and 25 of the American Human Rights Convention (San José
Agreement), and of the ius cogens principles —incorporated into the
Mexican legal system in conformity with constitutional Article 133—
regarding the need for impartial, objective, and expedite action by the
authorities responsible for procuring justice to achieve effectiveness in
terms of individual liberties.
On the other hand, the fact that Luis Echeverría Álvarez, as President
of México, had direct control over the Federal District Public Prosecutor’s
Office, as did the Governor of the capital, was derived from a constitutional
mandate, specifically as established under Articles 73, section VI, 3rd
and 5 th bases; Article 89, section II, and Article 102, meaning that the
violation of rights could not be taken to exist in this case either.
The fourth indictment was deemed admissible because Luis
Echeverría Álvarez and Mario Augusto José Moya y Palencia were the
former President of México and Secretary of the Interior from 1
December, 1970, to 30 November, 1976, respectively —the time of the
events in question. In conformity with the third paragraph of constitutional
Article 108 in effect at the time, the President of México could, during
his term in office, be accused of treason and other serious crimes.
To undertake legal proceedings against serious crimes committed by the
President, constitutional Article 109, first paragraph, establishes that
it is necessary to obtain a majority vote at the Chamber of Deputies,
operating as plaintiff. As for the Secretaries, they were held liable for
any crimes committed during their term in office, but prior mediation
from the Chamber of Deputies was also required in order to institute
legal proceedings against them. Therefore, the Public Prosecutor’s Office
could not institute legal proceedings against the defendants as it was
first necessary to strip them of their constitutional authority.
Title IV of the Federal Constitution was reformed by means of a
decree published in the Federal Official Gazette on December 28, 1982,
expressly establishing in the second paragraph of constitutional Article
114, the principle whereby the terms of prescription are to be
interrupted in the case of crimes committed by Government workers
while such servants remain in office. The First Chamber indicated that
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this constitutional reform could be effective with regard to the events
occurred in 1971, given that the prohibition of retroactivity is inapplicable
to norms of the same hierarchical level.
In these terms, it was inferred that the terms of the Statutes of
Limitations were interrupted up until the time that Luis Echeverría
Álvarez and Mario Augusto José Moya y Palencia concluded their
respective terms of office. In this sense, if the events alleged to represent
the crime of genocide took place on June 10, 1971, when the two
were still in office, the term to compute the prescription did not begin
until they stepped down. For such reason, the Chamber considers of
the fourth indictment to be well-grounded, whereby the Federal Public
Prosecutor alleged that the Judge had a quo interpreted and applied
incorrectly Articles 100, 101, and 102 of the Federal District and
Territories Penal Code then in effect, by isolating the provisions relating
to the aforementioned Statute of Limitations from the constitutional
provisions in effect at that time, in relation to Luis Echeverría Álvarez
and Mario Augusto José Moya y Palencia.
Consequently, the First Chamber decided to modify the first point
of resolution in the ruling in dispute passed by the Second Criminal
Judge declaring that the Statute of Limitations on the legal action had
not operated in relation to Luis Echeverría Álvarez and Mario Augusto
José Moya y Palencia given that, for the 30 year term to be valid in
terms of Article 105 of the Federal Penal Code, it could not be computed
as from 11 June, 1971, but starting December 1, 1976, the date of
conclusion of their respective terms in office as President and Secretary
of the Interior.
Crimes against health —more specifically—,
smuggling narcotics, contained in article 194,
Section II, of the Federal Criminal Code
materialize upon commission in the exclusive
economic zone.
Direct Amparo under Review 23/2005. June 15, 2005. Opinion Delivered
by Justice Juan N. Silva Meza.
In resolving the appeal for review filed by the Federal Law Enforcement
Authorities against the sentence issued by the Collegiate Court, granting
the plaintiff the protection of the Federal Courts, the First Chamber
was required to determine whether the exclusive economic zone
referred to in Article 27 of the Mexican Constitution is, or can be
considered, national territory for purposes of subsuming a conduct
potentially representative of an offense of the type contemplated under
Article 194, Section II, of the Federal Penal Code (CPF) and thus
determine whether this constitutes the offense of introducing narcotics
into the country.
In order to reach a conclusion, the Chamber first advised that,
Articles 42 and 43 of the Federal Constitution indicate that, on the one
hand, national territory includes the parts comprising the Federation
—including the various States of the Union— and, on the other hand,
the insular territory, territorial seas, continental platform, submarine
platforms, the waters of the territorial seas and, even, the space located
over the national territory. Likewise, it mentioned that Article 27 of the
Constitution establishes that the Nation exercises an exclusive economic
zone located in its territorial seas and in adjacent areas, the rights of
sovereignty and jurisdictions determined by the laws of the Congress,
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and that such zone extends 200 nautical miles as from the base line
from which the territorial sea is measured.
After analyzing that established in Articles 27, 42, and 43, of the
Federal Constitution; Article 25, numeral 1, and Article 27, numerals 1,
subparagraph d), and Articles 5, 55, 56, 57, and 108, of the United
Nations Convention on the Law of the Sea; Articles 1, 2, 25, 46, 47,
48, and 50, of the Law of the Sea (LFM); Article 1 of the Convention
of the High Seas; Article 17 of the United Nations Convention against
the Illegal Traffic of Narcotics and Psychotropic Substances; and Article
1, Section I, Article 2, Section II, and Article 7, of the Law of National
Property (LGBN), the Chamber deduced, among other things, that
the exclusive economic zone is of a sui generis type for, although the
government exercises rights of sovereignty and jurisdiction, foreign
States also enjoy rights, liberties, and obligations therein; that the
aforementioned zone forms part of the national patrimony and
represents property of public domain —in which the Federal Courts
are competent to hear criminal proceedings—; that the coastal states
may take the measures necessary to impede any passage not considered
through its territorial seas; and that the Mexican nation, as a party
to the United Nations Convention on the Law of the Sea, and as a
coastal State of the exclusive economic zone, has the responsibility
to legislate, by means of the Congress, in relation to all matters relating to
such legal institution.
Based on the above considerations and taking into consideration
that national and international norms indicate that in order to establish
whether the Mexican State may or may not exercise criminal jurisdiction
in the exclusive economic zone, it is necessary to evaluate whether it
has the authority to create legislation on the laws of the seas, and to
exercise its sovereignty and jurisdiction, the Chamber concluded that,
although it is true that the Mexican nation does not have absolute
property over the exclusive economic zone —given that it is limited by
the related normative regulations— it is also true to say that for purposes
of criminally sanctioning the offense contemplated in Article 194,
Section II, of the CPF, in its mode of introduction of narcotics into the
country, it is possible to exercise criminal jurisdiction. The elements of
national and international law provided for the offense in question
being considered as consummated whenever perpetrated within the
exclusive economic zone,118 for if the intention is to exercise jurisdiction
118
Ruling 1a. XCVIII/2005, ib., September 2005, p. 295.
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both in the territorial seas as well as on the high seas, this is also the
case with the exclusive economic zone, in conformity with the norms
established by the measures and cooperation system between States
aimed at repressing conducts relating to drug trafficking, considered
international offenses.
To support the above conclusion, the Chamber referred to that
established in Article 2 of the LFM in the sense that such law belongs
to the federal jurisdiction and is applicable in the marine zones that
form part of the national territory and, wherever applicable, beyond
these areas in the marine zones where the Nation exercises rights of
sovereignty, jurisdiction, and others; as well as that indicated in Article
2, Section IX, of the Mexican Navy Law (LOAM), which establishes as
one of the powers attributed to the Navy that of guaranteeing fulfillment
of the juridical order in Mexican marine zones, as well as undertaking or
helping the competent authorities to combat the trafficking of narcotics
and psychotropic substances.
Finally, it should be mentioned that in relation to the matter at
hand, Justices José Ramón Cossío Díaz and José de Jesús Gudiño
Pelayo issued a minority vote, pronouncing themselves against these
considerations and against the decision, based on the argument that
the exclusive economic zone does not form part of the national territory
and that the Mexican State cannot thus apply its penal regulations in a
unilateral matter.
The Court determines that various articles of
the Federal Consumer Law relating to the sale
of real estate for housing and time sharing are
constitutional.
Amparo under Review 32/2005. June 16, 2005. Opinion Delivered
by Justice Juan Díaz Romero.
Upon hearing the amparo proceedings instituted against the Legislative
Decree containing the Law that Establishes, Reforms, Adds, and Repeals
Various Provisions of the Federal Consumer Protection Law (LFPC),
specifically that referring to Articles 73, 73 BIS, 73 TER, 75, and 87,
the Mexican Supreme Court, in plenary, reached different conclusions.
Firstly, it affirmed that the issuance and approval of the LFPC by
the Federal Congress of the Union is in accordance with the power
consecrated in Articles 73, Sections X and XXIX-E, and Articles 25
and 28, of the Federal Constitution, in favor of such legislative body.
In defense of consumers, the precepts under challenge establish
types, conditions, and requirements to enter into contracts relating to
suppliers engaged in developing, building, promoting, advising, and
selling to the public in general, housing destined for residential
purposes. In addition, the powers of the Congress aimed at protecting
the consumers —in relation to the sale of residential homes or time
share offered by the suppliers— do not invade the spheres of competence
constitutionally corresponding to the States and the Federal District. 119
119
Ruling P./J. 97/2005, ib., August 2005, p. 7.
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Moreover, with regard to the change brought by the plaintiff
alleging that the norms contested grant the Federal Consumer
Protection Office (PFC) powers that are not in accordance with its
legal status, the Court indicated that such agency is a decentralized
organ providing social service, with its own legal status and patrimony,
that serves administrative authority functions, as well as being endowed
with legal authority of a preventive, educational, representative, and
procurement, and resolution of conflicts nature, and that the authorities
conferred do in fact correspond to its legal status and with that
established under the Constitution.120
In addition, the Court concluded that the precepts of the LFPC
contested do not violate Article 5 of the Federal Constitution for it
found that the fact that the obligation for citizens to comply with the
laws, regulations, and general norms does not hinder free trade, given
that it does not impede the engagement in a profession, industry, trade,
or labor that results beneficial to the individual. Moreover, the law
contested does not establish unfair treatment as a result of imposing
highly severe demands on suppliers engaged in the sale of residential
and timeshare homes, for it considered that these activities are sui
generis and require their own specific treatment, and thus cannot be
legally equal to other types of real estate sales.121
Moreover, the Supreme Court, was of the opinion that, contrary
to that alleged by the plaintiff, the precepts contested do not infringe the
rights contemplated in constitutional Articles 25 and 28. With respect
to Article 25, the Supreme Court, specified that it does not establish any
right liable to be protected through amparo proceedings. With regards
to Article 28, the Court found that the right to free competition in the
market is not transgressed, given that the administrative obligations and
processes imposed by the provisions challenged do not impede free
competition, for those persons fulfilling the requirements to exercise
such profession may engage in this activity.122
Likewise, the Court specified that the constitutional supremacy
contemplated in Article 133 of the Federal Constitution was not violated
given that the precepts contested do not in any way permit the PFC to
become an auditing authority over the contracts entered into by the
citizens or regulating their registration to the point that it may overlook
Ib.
Ruling P./J. 99/2005, ib., p. 10.
122
Ruling P./J. 101/2005, ib., p. 11.
120
121
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or abstain from applying local laws. Rather, the Articles contested
are only applicable in the commercial stage of the contract between
the supplier and the consumers for purposes of fulfilling the protective
mandate of constitutional Article 28. 123
Finally, the Supreme Court, found that the inscription obligation
referred to in the norms under challenge are not detrimental to the
autonomy of the States, but merely represent an administrative
requirement conducive to avoiding abusive clauses against the consumer,
it does not exempt the registration of the related contract in the Public
Registry of Property and Commerce of the State. Thus it is a provision
that conforms to the protecting function that the Federal Constitution
assigns to the PFC of the Consumer and does not interfere with the
local registration institutions.124
123
124
Ruling P./J. 108/2005, ib., p. 5
Ruling P./J. 96/2005, ib., p. 14.
Article 49, section i of the Federal Duties Law
is unconstitutional because it takes into
account factors other than those that should
be considered for the imposition of a tax for
public services
Amparo under Review 790/2005. Abb México, Sociedad Anónima
de Capital Variable. June 17, 2005. Opinion Delivered by Justice
Juan Díaz Romero.
The Assistant Federal Tax Attorney for Amparos appealed for a review
on behalf of the Undersecretaries of Finance and Public Credit, Income,
and Disbursements, on behalf of the Chief Administrative Officer and
the Minister of Finance and Public Credit (the latter acting in
representation of the President of the Republic) all of whom considered
that by indicating that Article 49, Section I, of the Federal Duties Law
(LFD) compromises the principles of tax proportionality and equity.
By having thus awarded the plaintiff an amparo, the District Judge
had infringed Articles 77, 78, and 80, of the Amparo Law (LA), giving
undue interpretation to the principle of tax proportionality and failing to
clearly specify the effects derived from the decision to award
constitutional protection to the plaintiff.
In response to the changes presented by the appellant, the Second
Chamber of the Supreme Court emphasized that Article 31, Section
IV, of the Federal Constitution made it evident that Mexicans have an
obligation to contribute to the public expenses of the Federation and
of the Federal District or of the State or Municipality in which they reside
in proportional and fair terms as prescribed by the law. The Chamber
also established that, in terms of Article 2 of the Federal Tax Code,
duties are taken to be the taxes established for the use or exploitation
of property belonging to the public domain of the Nation, and for
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receiving State services as a public right. Thus it concluded that in
the case of such taxes, tax principles cannot be applied equally as
in the case of regular taxes.
In such terms, the Chamber established that two aspects must
be contemplated for the imposition of a duty for services to be
proportional: 1. The duty amount must be consistent with the cost
implied by the rendering of service by the State, and is not required to
be exact, but approximate; and, 2. The duties must be fixed and
equal to ensure that an identical service is received, for the real objective
of public activity can generally be translated into the performance of
activities requiring a uniform administration effort through which all
related needs can be satisfied without an appreciable increase in the
cost of the service.
Thus, the Chamber indicated that in order to analyze the
proportionality and fairness of the normative provision that establishes
a right, it is necessary to take in consideration the activity carried out
by the State, which requires its payment. The Chamber also indicated
that, even though the general rule is that the duty cannot contain
elements that are alien to the cost of the service rendered given that
this would mean that a different amount was in effect charged for the
same service, in the case of duties for services, the legislator may
establish various progressive quotas and tariffs. In such case, additional
elements to the cost of the service may be taken into account due to
tax policy considerations established by the legislature, with the view
to reducing or decreasing the tax burden of the taxpayer.
Having indicated the above, the Chamber affirmed that Article
49, Section I, of the LFD (which establishes that taxpayers are required
to pay a duty on customs processing in the case of operations carried out
using a declaration in the terms established under the Customs Law),
in conformity with the related established quota on the value of the
merchandise in question, for purposes of the general import tax, does
not attend to aspects that must be considered in quantifying the
quotas. The type of public service rendered and its cost whenever
congress establishes the payment of a base quota applied on the value
of the property or merchandise that is the object of the declaration but
includes a different tax, which is a situation contrary to the principles
of tax proportionality and fairness. After all, to cover same service;
that is, a customs process by means of a declaration or customs
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document, the taxpayers pay more or less duties depending on aspects
relating to his or her economic capacity, as in the case of taxes.125
Thus, the Court, concluded that whenever the value of imported
goods is not proportional to the cost of the customs process service
vet the amount of the related duty is determined on such basis, this
amounts to giving unfair treatment to persons in equal situations.
Although the customs process is equal for all users, the amount payable
depends not on an element that is additional to its cost but, rather,
alien to it.
Given the above considerations, the Second Chamber considered
the grievances put for ward by the appellant groundless, and
confirmed the unconstitutionality of aforementioned Article 49,
Section I, of the LFD.
125
Ruling 2a./J. 122/2006, ib., t. XXIV, September 2006, p. 263.
Persons that hold or present documents
authenticating the ownership of a foreign
vehicle may be found guilty of vehicle
smuggling upon failure to produce the
appropriate permit
Collegiate Court of the Twenty Third Circuit and the Second Collegiate
Court of the Eight Circuit. June 22, 2005. Opinion delivered by
Justice Juan N. Silva Meza.
Having analyzed the final decisions handed down by the First Collegiate
Court of the Twenty Third Circuit and Second Collegiate Court of
the Eighth Circuit, the First Chamber of the Supreme Court was of the
opinion that there were contradictory rulings the first of the two Courts
deemed it inexact that Article 103, Section II, of the Federal Tax Code
(CFF) should require the party allegedly guilty of smuggling to be
the person that introduces the foreign vehicle or merchandise into the
country, for it considered that such hypothesis implies that it is not
necessary to support this latter aspect in order to consider the crime in
question to have been committed.
For its part, the Second Collegiate Court of the Eight Circuit was
of the opinion that the phrase "whenever foreign vehicles are found
outside a zone..." alludes to the fact that, in Article 103, Section II, of
the Federal Tax Code, reference is made to the conduct-action carried
out by a third party and not to that of perpetrator of the offense who is
attributed the conduct of introducing the merchandise into the country
or of extracting such merchandise from the country under Article 102 of
the same law. Thus from the context of these two articles, the action
attributable to the plaintiff is that of introducing the foreign vehicle
into the country, qualifying such vehicle under the generic concept of
"merchandise".
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The First Chamber of the Supreme began by emphasizing that it
had already pronounced on the matter by resolving amparo under
review 536/2004; and that, consequently, the considerations exposed
in that case were to prevail in this resolution to opposing rulings. The
Chamber indicated that Article 103, Section II, of the Federal Tax Code,
did not include a description of the conduct in relation to the perpetrator
of the crime. It was impossible to disregard the fact that in the sphere of
penal doctrine, diverse clauses of penal types exist, including those
that are by nature complementary; that is to say, those whose existence
requires the updating of the application of the basic penal to form a
single type. Based on this consideration, the description contained
in Section II of Article 103, of the Federal Tax Code, creates a
complementary type which, in order to exist, presupposes the application
of the basic type on which it is dependent, which in the case of Article
102 of the aforementioned legal order, contemplates the offense of
smuggling.
Moreover, the First Chamber indicated that Article 102 of the
Federal Tax Code makes it evident that whoever introduces or extracts
merchandise from the country commits the offense of smuggling either
by failing to pay the obligatory compensatory taxes that must be
covered or by not having the permission of a competent authority.
It also establishes that the offense of smuggling is considered to be
committed by any person who, in the above cases, brings foreign
merchandise into the country derived from free zones, as well as those
who extract such merchandise from tax or audited premises without
handing them over to the authorized authorities or persons. In turn,
numeral 103, Section II, of the same Code establishes that the crime
of smuggling is considered to be committed whenever foreign vehicles
are found outside the 20 kilometer zone in any direction measured in
a straight line as from the outer limits of the urban zone of the border
populations that are lacking the respective documentation.
Consequently, the First Chamber emphasized that the crime of
smuggling is committed by whoever is responsible for introducing
merchandise into the country or for extracting it, not having duly
made the related tax or quotas payments, and without the authorization
of the respective authorities. Furthermore, such an offense is deemed
to be committed whenever foreign vehicles are located outside the
permitted zones without having the respective documentation.
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The First Chamber thus concluded that, from a joint analysis of
Articles 102 and 103, Section II, of the Federal Tax Code, it is evident
that the legal presumption of the crime of smuggling is comprised of the
following elements: 1) a conduct involving the introduction of foreign
vehicles into the country; 2) that such vehicles are located outside the
20 kilometers zone in any direction taken in a straight line as from
the outer limits of the urban zone of the border populations; and 3)
that authorization from the related authority has not been obtained. 126
126
Ruling 1a./J. 83/2005, ib., p. 68.
The Supreme Court annulled the official
documentation issued by the General Auditor
of the Federation requiring nonpayment of the
debt abnormally entered by various banks for
this is considered to represent an invasion of the
powers of the Executive
Constitutional dispute 91/2003. Federal Executive. June 23, 2005.
Opinion delivered by Justice Margarita Beatriz Luna Ramos.
In the constitutional dispute, the plaintiff —Legal Advisor of the Federal
Executive, in representation of the President of the Republic—
challenged the issuance of 34 official documents relating to the review
of the public account 2001 by the General Auditor of the Federation
(ASF), based on the consideration that it violated Articles 14, 16, 25,
49, 74, Section IV; 79, 80, 89, Section I; 90, 94, and 133, of the Mexican
Constitution. The official documents were addressed to the heads of the
Ministry of Finance and Public Credit (SHCP), to the Institute for
the Protection of Bank Savings (IPAB), and to the Head of the Public
Service Ministry (SFP), and related to the follow-up review of the
financial operations carried out for the revision of the Portfolio
Capitalization and Purchase Program, derived from the Savings
Protection Bank Fund (FOBAPROA).
An invasion of the powers held by the Federal Executive had
been alleged in the inspection of the management and execution of
the Portfolios Capitalization and Purchase Program. It was affirmed
that the official documentation challenged was unconstitutional for it
contained orders addressed to the audited entities consisting of
substituting credits or decreasing the amount of FOBAPROA promissory
notes and canceling the guarantee of the Federal Government, the
ASF is empowered to recommend that the Executive take actions
281
282
RELEVANT DECISIONS
conducive to rectifying irregularities detected in the revision of the
public accounts, but such powers cannot be taken to mean that it is
authorized to issue precise instructions to be followed.
The bench of the Supreme Court recalled that the limits on the
powers held by yhe entity responsible for auditing financial administration
in the Mexican constitutional system have been defined by means of
earlier rulings. In the case at hand, it was deemed convenient to allude
to constitutional rulings 36/2003 (November 4, 2003) and 61/2004
(April 12, 2005). In the case of the former, the official ASF documentation
disputed was declared invalid as a result of the revision made of the
public account pertaining to the year 2000. Thus, the Court determined
that the normative framework applicable to the case should be that
which was effective prior to the constitutional reform of 1999, which
reinforced the powers of the aforementioned public entity as a result
of the review of the public account of 2000, in terms of the second
transitory Article of the Federal Constitution, relating to such reform. Two
constitutional limits were then defined governing the interpretation of
the powers held by the auditing body in reviewing the public account
of 2000:
1.
2.
The ASF does not have imperative authority in relation to audited
entities in the sense of being able to order them or force them to
carry out specific, precise, and concrete acts, conducive to
rectifying aspects that such technical body considers to represent
irregularities.
The ASF invades the constitutional competence held by the
Federal Executive whenever it issues specific, precise, and
concrete acts conducive to substituting such Power in its role as
executor or direct administrator of public resources.
The ASF had instructed the Executive to implement measures
conducive to decreasing the amounts indicated and those relating to
interest on the promissory note and/or obligation, and to cancel the
guarantee on such credits and inform the ASF of the actions undertaken.
This instruction formula was declared unconstitutional by the Court.
The ratio decidendi derived from such controversy (36/2003) hinged
on the consideration that the instructions of the ASF, conducive to
forcing the Executive to carry out specific, precise, and concrete acts
affecting the powers of decision of such Power in terms of the execution,
application, and administration of public resources to overcome
irregularities, in the opinion of the technical body, violated the balance of
powers system contemplated under the Federal Constitution.127
127
Ruling P./J. 107/2005, ib., September 2005, p. 701.
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283
In the official documentation that is the object of constitutional
dispute 91/2003, the ASF also instructed the Executive to implement
measures to decrease the amounts indicated and respective interest
on the promissory note and/or obligation, to cancel the guarantee over
such credits and to inform ASF of the actions carried out. Thus, the
Court declared the concept of invalidity well-founded, whereby
the plaintiff indicated that ASF invades the sphere of authority of the
Federal Executive, even when such body has judicial authority as from
2001, including the auditing of programs and acts carried out prior to
that date. This last conclusion —added the Court— was based on the
precedent integrated in constitutional dispute 61/2004, which also
contributed elements of judgment conducive to defining the constitutional
parameter of validity surrounding the actions of the ASF.
Moreover, the Court, believed that the contents of the observations
on the basis of which it requested the modification of some of the
terms agreed in the operations relating to the Portfolios Capitalization
and Purchase Program violated the principle of annuity 128 instituted in
Article 79 of the Supreme Law, as well as in the second transitory Article
of the constitutional reforms decree dated July 30, 1999. Although such
rectification method came into operation in June 1995 and terminated
in December 1998, it could be concluded that the General Audit
Law, effective as from December 30, 2000, was inapplicable as a basis
for the auditing procedure carried out by ASF and culminated with
the issuance of the 34 official documents contested, given that its
effectiveness could not extend into the past.
In light of the above, the Court declared the invalidity of all official
documents signed by the ASF and of prior acts that served as their
basis, with full effect for all consequences dependent on such official
documentation.
128
Ruling P./J. 98/2005, ib., p. 888.
It is unconstitutional for the Tax Code for the
Municipality of Veracruz to set forth that City
Council officers responsible for administering
resources are compelled to pay bonds from their
own money in order to secure payment of liabilities
incurred during the course of their duties
Constitutional dispute 38/2003. Municipality of Veracruz, State of
Veracruz. June 27, 2005. Opinion delivered by Justice: Juan Díaz
Romero. Justice in charge of the sixth recital, Genaro David Góngora
Pimentel.
This constitutional dispute involved a conflict between the State of
Veracruz, by means of its Legislative and Executive Powers, and the
Municipality of Veracruz. The plaintiff (Municipality of Veracruz) alleged
that Article 271, Section IV, of the Municipality of Veracruz Tax Code
—published in the Government Gazette of that entity on March 10,
2003—, by establishing that civil servants are required to pay out of
their own money the bonding premiums required to guarantee
payment of the liabilities in which they might potentially incur in the
performance of their duty, applies to all municipal public officials. Some
are responsible for collecting, handling, monitoring, and administering
funds and securities belonging to the municipality, and have under
their responsibility "public task", some of them expressly contemplated
in the Free Municipality Law —such as the President and the Municipal
Treasurer— while others do not —some cashiers or employees of
collection officers— but in both cases the "exercise of public actions"
do not correspond to such individuals but to the "state function". This
means that, if the public functions are inherent to the Mexican State,
the need to strengthen the functions of its dependents must also pertain
to the State. This also applies to the employer of the government worker,
being required to ensure that its dependents have adequate conditions
to perform their work, without imposing economic charges not legally
contemplated. It was also argued that municipal workers of the State
285
286
RELEVANT DECISIONS
of Veracruz are governed by the State Civil Service Law and, in a
supplementary manner, by the Mexican Labor Law, and that both contain
the basic principles included in Article 123 of the Federal Constitution.
However, neither of them contain provisions obliging municipal public
servants to pay bonding premiums guaranteeing the fulfilment of his
responsibilities, out of his own pocket.
Instead of the deficiency alleged, the bench of the Supreme Court
detected a problem of constitutionality deserving of the priority analysis
that led to the declaration of invalidity of the norm challenged. In the
opinion of the Court, there was a violation of the right of Mexican
citizens to have access to public employment, as contemplated in Section
II of Article 35, of the Federal Constitution. This precept regulates the
legal consequences derived from the status of citizen, in the form of
rights and duties acquired by those who have Mexican nationality, are
18 years of age, and abide by an honest way of living. The Court,
observed that Section II of constitutional Article 35, regulates two
different rights: a) the right to be elected to all positions decided by
popular vote, and b) the right to be appointed to any public employment
or commission, other than the positions decided by popular vote,
proved the requirements established under the law are fulfilled.
Thus, the Court, highlighted, justified the fact that the Federal
Constitution guarantees the right of citizens to have access to
government employerment, and added that such right is subject to the
requirements established under the law. Such requirements must be
reasonable, non-discriminatory, and based on the principle of equality
for citizens, and must be interrelated with the constitutional provisions
regulating public service.
The Court, added that an analysis of Article 35, Section II, of the
Constitution made it evident that, although this is a legal configuration,
its development is not completely at the disposition of the congress.
The use of the concept "requirements" alludes to the qualities —capacity,
abilities, professional experience, age and other circumstances— or
profile of a person to be appointed to carry out the job, position,
or commission in question.129 Likewise, the concept of "requirements"
must also relate to the principle of efficiency in the performance
of duties, employment, charges, and commissions contained in
constitutional Article 113 and to that established in Article 123,
129
Ruling P./J. 123/2005, ib., October 2005, p. 1874.
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subparagraph B, Section VII (also of the Federal Constitution),
establishing that the designation of personnel should be by means of
systems that allow for the evaluation of knowledge and abilities of the
candidates, including the aforementioned principles and ability.
According to the Court, this interpretation must be related to Articles
115, Section VIII, second paragraph, and 116, Section VI, of the
Constitution, in accordance with which work relations between States
and Municipalities and workers are governed by the laws issued by
the Legislatures of the States, based on constitutional Article 123 and
regulatory provisions.
The Court inferred that the interconnection between the various
constitutional provisions cited, in light of a systematic interpretation,
lead to the conclusion that the Constitution imposes the obligation of
not demanding a requirement or condition other than the principles
of efficiency, merit, and capacity included in such precepts in order to
have access to public service. Thus, Section IV of Article 271, of the
Tax Code for the Municipality of Veracruz, by establishing that public
servants who collect, handle, monitor, or administer funds or securities
belonging to the municipality or under the care of the City Council,
are required to pay from their own pockets the bonding premiums
required to guarantee the payment of their potential liabilities incurred
during the performance of their responsibility, violates Article 35,
Section II, of the Federal Constitution. A requirement not demanded
by Constitution is contemplated (the Constitution essentially limits itself
to requiring the citizen to have the required capacity to efficiently serve
the public office granted) and cannot be considered to be in accordance
with the principles of efficiency, merits, and capacity for the access to
public service, derived from Articles 113 and 123, Section VII, of the
Federal Constitution, given that the economic condition and possibility
of covering a bond is not indicative of such requirements.130
Thus, in light of the unconstitutionality of Article 271, Section IV,
of the Tax Code for the Municipality of Veracruz, the Court, upon
finding that the norm was discriminatory and contrary to the right of
access to government employment in conditions of equality, declared
the invalidity of the provision.
130
Ruling P./J. 124/2005, ib., p. 1873.
287
The Supreme Cour t dismisses Amparo
proceedings instituted by Benjamín Arellano
Félix against the Organized Crime Prevention
Law
Amparo under review 727/2005. June 29, 2005. Opinion delivered
by Justice Olga Sánchez Cordero de García Villegas.
In the case at hand, the First Chamber of the Supreme Court maintained
that in the sentence under appeal, the judge had studied Articles 2,
Section I, and 4, Section I, subparagraph a), of the Organizer Crime
Prevention Law (LFDO), and Article 194, Sections I and II, of the
Federal Criminal Code (CPF), maintaining that these legal provisions
establish the elements comprising an offense violating the LFDO, and
those referring to a drug related offense. Thus it is unnecessary to
provide a detailed explanation when defining the offenses of drug
trafficking and introduction of narcotics into the country, which is why
the aforementioned articles do not transgress the guarantees of legal
security and exact application of criminal law.
The lower Court had concluded that, in relation to Article 2,
Section I, numeral 4, Section I, subparagraph a), both belonging to the
LFDO, the term "permanent" —as in the type of offense in question—
is in fact of a normative nature and must be understood in relation to
the common meaning given to the word "permanence" in the sense of
"duration", "that does not change the status or condition or quality
of a person or thing"; that is to say, the criminal organization lasts for
a more or less prolonged period of time. On the other hand, although
Article 2 of the LFDO does not specify that the criminal organization
should have a head and it should have command systems structures,
it is true to say that numeral 4 of the same law, in sanctioning those
289
290
RELEVANT DECISIONS
involved in organized crime, distinguishes whether they are part of a
command structure or not, and more so in light of the fact that the
meaning of the concept of criminal organization makes it obvious that
it needs to have a head and a command structure and a distribution of
roles whereby each member carries out a specific task. For this reason,
the fact that it does no, make allusion to, or provide a detailed
explanation of the concepts of structures or command heads required
of a criminal organization to be involved in organized crime does not
violate the constitution. The guarantees of legality, juridical security
and exact application of the law established in the amparos against
laws cannot be exacerbated to the degree of demanding that the law
define each word as in the case of a dictionary.
Likewise, the First Unitary Court of Circuit Two analyzed the
argument of the party seeking appeal with respect to Article 194, Sections
I and II, of the CPF, in terms of drug trafficking and introduction of
narcotics. The concept of trafficking generally covers the movements
of the narcotics from person to person, the concept of trade being
part of the idea of trafficking, taking into consideration that the reiteration
of trade activities is required for its very existence. On the other hand,
the modality of trafficking, in drug related crimes is a habitual offense
demanding the reiteration of the illegal conduct, so that only the
whole constitutes the criminal conduct. Furthermore, in relation to
the characteristics of the manner in which the narcotics are introduced
into the country, because the precept does not establish particular
execution circumstances, this can be done at any time and by different
means (either sea, air, or land) and it is obvious that this is necessarily
an action from outside the country going into the country and crossing
borders. Therefore, the concepts of trafficking and introduction do not
result obscure, or vague, or imprecise, as manifested by the plaintiff.
Thus, as far as the First Chamber was concerned, the considerations
in the sentence under appeal were correct with regards to the impossibility
of defining, in criminal law, all the words mentioned, meant that the
solution comes through the actions of the judge; that is, the interpretation
is not arbitrary but, rather, subject to the rules imposed by the law and
jurisprudence.
For such reasons, the Court determined that Article 2, Section I,
and Article 4, Section I, subparagraph a), of the LFDO, and Article
194, Sections I an II of the CPF, do not transgress the guarantees of
juridical certainty and exact application of criminal law.
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291
Furthermore, the plaintiff maintained that, the offense of organized
crime is mistaken for criminal association, as established in Article 164
of the CPF, and that the considerations leading to the sentence have no
relation to such concepts. This allegation was considered groundless
for it had been coherently contested with regard to that exposed by
the plaintiff in the previous trial. In fact, the constitutional judge
overlooked Article 164 of the CPF in examining the unconstitutionality
exposed, given that the plaintiff, in his concept of violation, had
proposed a conflict of secondary laws, not the counter-position of a
secondary norm as fundamental. Moreover, the connection made
between the two secondary precepts was aimed at indicating that
the Prosecuting Authorities are responsible for determining the
hypothesis of consummation. Thus, the plaintiff was only referring to
the hypothesis relating to drug related crimes, which explains why the
indication was considered groundless. In any case, the existence of
criminal conducts is a matter for investigation by the Prosecuting
Authorities, in terms of Article 102, subparagraph A) of the Federal
Constitution. It is true that Article 164 of the CPF does not expressly
establish the responsibility of the investigating institution to determine
whether criminal conducts exist or not, as well as the fact that, in the
case at hand, only facts are adduced, and it is the judicial authority
that makes the related declaration.
Thus, the First Chamber concluded that the concept of violation
had been analyzed whereby it was maintained that the Articles
challenged in the LFDO are mistaken for the concept of criminal
association established in Article 164 of the CPF, meaning that the
considerations behind the sentence were definitely coherent with that
exposed, based on the following: a) that two secondary laws cannot
be confronted, but only one secondary law may be confronted with
the Federal Constitution, b) that the plaintiff was only referring to the
hypothesis relating to drug related crimes, and c) that, in any case,
the existence of delinquent conduct is a matter for investigation by the
Prosecuting Authorities.
The Supreme Court subsequently considered it admissible to
confirm the sentence under appeal and to deny the amparo requested.
JULY
2005
The Mexican Supreme Court specifies the
scope and characteristics of State Laws and
Municipal Regulations
Constitutional dispute 14/2001. Municipality of Pachuca de Soto,
State of Hidalgo. July 7, 2005. Opinion delivered by Justice Olga
Sánchez Cordero de García Villegas.
Upon hearing this constitutional dispute promoted by the Municipality
of Pachuca de Soto, in the State of Hidalgo seeking the invalidity of
Article 148 of the Local Constitution —in relation to which a stay had
been granted following its repeal by the local constitution reforms decree
dated February 26, 2001— as well various precepts in the Municipal
Organic Law of the same State (LOMEH), the bench of the Supreme
Court, made important considerations with regard to the municipal
juridical order.131
In the first place, it was clarified that, the amendment of constitutional
Article 115, dated December 23, 1999, significantly increasing the powers
of the Municipalities and consolidated their sphere of power. Thus along
with the constitutional, federal, state, and Federal District legal systems,
the municipal system is also in place. 132 It was also indicated that it was
131
Three minority votes originated from this matter —the first issued by Justices
Olga Sánchez Cordero de García Villegas and Genaro David Góngora Pimentel; the
second by Justices Mariano Azuela Güitrón, Sergio Salvador Aguirre Anguiano, Juan
Díaz Romero, and Sergio A. Valls Hernández; and the third by Justices Genaro David
Góngora Pimentel and Juan N. Silva Meza —as well as one individual vote from Justice
Juan N. Silva Meza.
132
Época, t. XXII, October 2005, p. 2070.
293
294
RELEVANT DECISIONS
precisely the Court, as Constitutional Court, that is required to define and
safeguard the sphere of power of such legal systems.133
On the other hand, the Court inferred that the aforementioned
reform included a modification of the terminology employed in Section
II of constitutional Article 115, with a double purpose in mind:
delimiting the object and scope of state laws for municipal purposes,
and exempting the regulatory authority of the Municipality in
determined matters. That is, a balance of power was sought to ensure
that the State was responsible for establishing the general guidelines aimed
at ensuring a similarity in basic aspects of all Municipalities, and that such
Municipalities have the authority specific norms within their jurisdiction
without contradicting or contravening such general guidelines.134
With respect to the delimitation of the state laws for municipal purposes,
the Court specified that, in terms of Section II of constitutional Article
115, the aim of such laws can only be to regulate: a) The general
municipal public administration and administrative procedure
guidelines designed to regulate only general matters, both of a
substantive and an adjective nature, allowing for the establishment of
a homogenous normative framework in State Municipalities; 135 b) The
cases that require the agreement of two thirds of City Council members
in order to dictate resolutions that affect the municipal real property
patrimony or to enter into acts or agreements that compromise the
Municipality for a longer term than the City Council, or in any other
situation thus determined by the State Legislatures;136 c) Those norms
of general application to ensure that the Municipality enters into agreements
with other Municipalities or with another State on the rendering of
public and tax management services; d) The procedure and conditions
for the State Government to assume a municipal service role when, having
made a prior related request before the City Council, the Legislature
considers that the Municipality in question is incapable of exercising
or rendering such services; and, e) The norms applicable to the lack of
municipal regulation.
Likewise, in terms of this last point, the Court, concluded that the
contents of state laws for municipal purposes are constitutionally
133
134
135
136
Ruling
Ruling
Ruling
Ruling
P./J.
P./J.
P./J.
P./J.
136/2005,
133/2005,
129/2005,
130/2005,
ib.,
ib.,
ib.,
ib.,
p.
p.
p.
p.
2062.
2068.
2067.
2066.
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delimited. The legislatures may issue detailed and supplementary
provisions governing the Municipalities that do not have the necessary
regulations so as to avoid normative vacuums in the municipal sphere
and to permit all acts of authority to be based on legal norms.137
Consequently, the Court maintained that Section II of constitutional
Article 115, grants the Legislatures two municipal powers: 1) the issuance
of the general guidelines regarding the Municipal Government and its
powers; and, 2) the issuance of detailed provisions on municipal matters
—solely applicable in Municipalities without the respective regulations,
meaning that such Municipality will be disconnected automatically by
law the moment it issues its own regulations— and that it is the
responsibility of the legislature to clearly distinguish the norms that
are obligatory from those that are only applicable in a supplementary
manner.
In another sense, the Court referred to the municipal regulatory
authority and specified that Article 115, Section II, of the Federal
Constitution, empowers the Municipalities to create factions, regulations,
circulars, and provisions for general observance, but added that these
cannot go against the Federal Constitution or that of the States, nor federal
or local laws, and must also cover matters, functions, or services
constitutionally or legally related to their sphere of power.
In this respect, the Court, added that City Councils are authorized to
issue two types of regulatory norms: a) the traditional detailed regulation
of norms, which adheres to the hierarchical subordination principle
ensuring that regulations are preceded by a law whose provisions are
developed, complemented, or detailed; and, b) the regulations derived
from Section II of constitutional Article 115; that is, "police and government
factions, regulations, circulars, and administrative provisions for general
observance within the respective jurisdictions, organizing the municipal
public administration, regulating matters, procedures, functions, and
public services under their competence, and ensuring the participation of
citizens and neighbors", which have a greater normative extension and
whereby the Municipalities can regulate more extensively certain specific
aspects of municipal life in the sphere of their authority. 138
Finally, based on the above considerations, the Court analyzed
the contested LOMEH precepts and inferred that, in relation to the
137
138
Ruling P./J. 131/2005, ib., p. 2065.
Ruling P./J. 132/2005, ib., p. 2069.
295
296
RELEVANT DECISIONS
latter, the legislature did not fulfill hits obligation of distinguishing the
general administrative guidelines conducive to establishing a
homogeneous normative framework for the State Municipalities and
which norms were to be given supplementary application in the absence
of municipal regulations. This generates serious inconveniences for the
Municipalities, given that they are incapable of determining what is
the sphere in which their powers to regulate in municipal matters were
respected. Thus the conclusion was reached that the legal autonomy
of the Municipality was affected. 139
The Court, then declared the invalidity of the provisions alleged
by the plaintiff Municipality (because they violated constitutional Article
115, Section II, subparagraphs a) and e)) considering that they were
not imperative and, for such reason, the Municipality could issue its
own regulations, even going against that established in the precepts in
question. Given the lack of precision with regard to the nature of the
norms under challenge, it was valid to declare that the Municipality was
free to decide whether they were to be applied in a supplementary
matter or to issue its own norms to continue with municipal development.
The Congress is however empowered to issue a new law in which it
distinguishes the quality of the norms referred to under Article 115, Section
II, of the Federal Constitution.140
139
140
Ruling P./J. 127/2005, ib., p. 2063.
Ruling P./J. 128/2005, ib., p. 2064.
Real property in favor of the beneficiaries of a
deceased worker, as designated by the Board
of Arbitration may be registered with the Public
Registry of Property without the need to formalize
appropriate adjudication through a public deed
and Fourth Collegiate Labor Courts of the First Circuit. July 8, 2005.
Opinion delivered by Justice Genaro David Góngora Pimentel.
The point of contradiction consisted of determining whether, once the
declaration of beneficiaries was made by the Board of Arbitration, as
well as the consequent assignment of the residence obtained by means
of a loan made to a deceased worker, it is valid to carry out the related
registration of deeds for the translation of property rights, in conformity
with Article 51, paragraph six, of the Federal Housing Fund Law
(LINFONAVIT).
The Second Chamber of the Supreme Court considered that it would
resolve the controversy. It recalled that it had pronounced on the award
of the residence to the beneficiaries of the deceased worker, considering
its admissibility through ruling 2a./J. 191/2004,141 and proceeded to
indicate that, as a result of probate proceedings as specified and regulated
by the Mexican Labor Law (LFT), the plaintiff in such proceedings, as
a consequence of the allocation of the real estate in question, seeks the
related registration of deeds. Though no additional legal support backing
the claim has been expressed other than that established under Article 51
of the LINFONAVIT, it is true to say that in accordance with the real
estate provisions contemplated in the Federal District Civil Code (CCDF)
141
Ruling 2a./J. 191/2004, ib., t. XX, December 2004, p. 388.
297
298
RELEVANT DECISIONS
and correlated codes of the States, it should be understood that such
petition alludes to the awarding of the respective public deed to formalize
the translation of title of property; that is to say, from the allocation
resulting from the declaration of beneficiaries in the labor inheritance
proceedings.
In this context, the Chamber referred to Article 51 of the
LINFONAVIT, whose second to last paragraph makes reference to
numeral 42, whose original text, in 1972, did not contemplate any
exception whatsoever to the general rule contemplated under the civil
legislation. However, the reform to such precept, effective as from
November 1981, was significant in terms of the formalities of the
operations and agreements signed in relation to the acquisition of
housing by means of an INFONAVIT loan, as shown by the legislative
process that led to such amendments. The Second Chamber returned
to the legislative antecedents of the original LINFONAVIT, reformed in
1981 and 1997, and proceeded to observe that its Article 42 is in strict
relation with numeral 51, in terms of the reference made to the latter
—which was reformed in 1985. In the opinion of the Chamber, given
the legislative modifications, the principle preoccupation of the
legislature was that the beneficiaries of the worker should obtain directly
and simply the registration of the title deeds of the residence that is the
object of the loan awarded to the worker, in the event of the latter’s
death, by means of a translation of property rights following only the
formalities referred to and its registration with the Register of Public
Property. This incorporates the social sense of inheritance right operating
under labor law, all in an effort to make those comprising the family
nucleus of the worker the beneficiaries of the obligations release insurance
in question and of the titling of the property that is the object of the loan,
eliminating the difficulty that in the moments of greatest needs would
have to be processed in inheritance proceedings.
Thus, and on the basis of the provisions contained in Article 42
of the LINFONAVIT, the Chamber discovered that not only have
probate proceedings in civil maters been avoided, but the formalities
contemplated by civil legislation with regard to the transmission of
property title of real property have been modified, discarding especially
the need for a public deed signed in the presence of a notary public to
ensure validity before third parties with regard to the operation carried
out, as well as the formality of the public deed with respect to the
allocation of the real property to the beneficiaries of the worker.
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299
The Chamber added that, because the LINFONAVIT contemplates
the form of succession of property in conformity with the labor law,
in terms of ruling 2a./J. 191/2004 and in conformity with Article 51 in
question, effective as from 1985, the latter Article establishes that the
allocation of the real property can only be made subsequent to fulfilling
the formalities contemplated in Article 42 of the law, effective as from
1981, and must therefore adhere to the guidelines specified for the
translation of property title formalities to the deceased worker. As a
matter of fact, the harmonic interpretation of the indicated precepts
—51 and 42 of the LINFONAVIT— make it evident that once the Board
of Arbitration has expressly appointed the beneficiaries of the
deceased worker, and once the INFONAVIT was required to release
the obligations, liens, or property title limitations existing in its favor, it
was valid to proceed to the allocation of the building to such beneficiaries,
as a direct or immediate consequence, in the manner prescribed in the
second to last paragraph of Article 42 of the aforementioned federal law.
Consequently, the claim of the beneficiaries demanding the registration
of deeds for the property in their favor, understood as the signing of a
public deed supporting the formality of the act transferring title of
property, is inadmissible, because the provisions of civil legislation do
not govern the matter in question. The transfer of property must be
made by means of the mere inscription of the real property in favor of
the beneficiaries, cancelling that inscribed in the name of the worker,
and the liens or limitations of property that would have to be released.
From the above provisions, it is evident that the transmission of property
by means of legal mandate —through the allocation made by the Board
of Arbitration in favor of the beneficiaries of the dead worker in the award
dictated in legal terms— must be the object of inscription at the Public
Registry, in conformity with the second last paragraph of Article 42 of
the LINFONAVIT.
The Second Chamber also noticed that, although it is not an obligatory
formality for the beneficiaries who have been allotted the property —by
means of the legal succession contemplated in the LINFONAVIT and
LFT— to transfer the ownership of the real property by means of public
deed, this does not imply that the interested parties cannot, if they deem
it convenient, process before a notary public the respective public deed, in
compliance with that established in the CCDF. They have the right to
proceed with such formality even though it is not obligatory.142
142
Ruling 2a./J. 90/2005, ib., t. XXII, August 2005, p. 309.
Holding a creditors meeting for the signing of
any agreement is inadmissible whenever loans
still to be acknowledged through a final decision
exist
Resolution to Opposite Rulings 43/2005-PS. Between the Third and
Ten Collegiate Labor Courts of the First Circuit. July 13, 2005. Opinion
delivered by Justice Sergio A. Valls Hernández.
The Third and Tenth Collegiate Labor Courts of the First Circuit analyzed
the same legal matter relating to determining whether it is admissible
to have a creditors meeting as part of the suspension of payment
proceedings whenever other credits are still pending approval. Both
courts adopted different criteria. According to the first Court, it was not
feasible to hold a creditors meeting for the admission of an agreement
whenever there was reservation with regard to pending credits, in
accordance with Article 296, of the Law of Bankruptcy and Suspension
of Payments (LQSP). The other Court was of the opinion that, in
conformity with the systematic analysis of Articles 296 and 360 of the
law, it was admissible to hold a creditors meeting for payment agreement
purposes, regardless of the fact that some credits are reserved for
subsequent resolution, whose situation has not been sufficiently
clarified, given that this is not imputable to such suspension of payments.
The First Chamber of the Supreme Court deemed that it would
resolve the controversy, derived from determining whether it was
feasible to hold a creditors meeting as part of suspension of payments
proceedings in order to enter into a payment agreement, although
other credits may exist pending recognition. The Chamber specified
that the LQSP was repealed by the Commercial Insolvency Law
(published in the Official Gazette on May 12, 2000), but that because
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the matters from which the rulings in conflict were derived began before
such time, it was necessary to resolve the contradiction in conformity
with its provisions, under the consideration that various matters to be
resolved could still be pending and be requiring application.
In its decision, the Court determined that a decision handed down
in suspension of payment proceedings whereby certain credits are
recognized and the recognition of other credits pending still requiring
clarification are reserved for afterwards does not constitute the final
sentence in such procedure, given that the sentence that finally
determines their situation is the decision marking the conclusion of
the respective stage. Therefore, while that does not happen, it is
inadmissible to hold a creditors meeting to sign any agreement, as
established in Article 296, of the repealed LQSP, regardless of the state
of such proceedings. Having concluded the recognition of the credits
and prior to final distribution, the bankrupt party and its creditors may
hold as many meetings as they consider necessary, which implies that
they must definitely resolve all claimed credits in due time in order to
approve any agreement. The Chamber added that the above in no
way impedes the fact that Article 360 of the aforementioned law, should
contemplate that prior (unrecognized) common creditors, and even
those whose credits were pending recognition, should be bound by
the signing of an agreement. Article 360 does not apply to the recognition
stage of credits but to the subsequent stage; that is to say, after
bankruptcy has been declared. 143
143
Ruling 1a./J. 120/2005, ib., October 2005, p. 524.
Judges must assess the specific circumstances
of a defendant and the commission of the offense
when establishing the imposed on a suspect
under parole
Resolution to Opposite Rulings 10/2005-PS. Between the First, Second,
Third, Fourth, and Fifth Collegiate Courts of the Sixteen Circuit.
July 13, 2005. Opinion delivered by Justice Olga Sánchez Cordero
de García Villegas.
For purposes of establishing the amount that a defendant is required
to pay in order to be allowed to be released on bail, is it necessary to
always indicate the minimum amount of the jail term established for
the offense, or should such amount be left to the arbitration of the judge?
This was the question to be examined by the First Chamber of the Supreme
Court, upon resolving the resolution 10/2005, between the First, Second,
Third, Fourth, and Fifth Collegiate Courts of the Sixteen Circuit.
The First Collegiate Court of the Sixteen Circuit maintained that
the scaling of the bail amount in question should be left to the arbitration
of the responsible Judge, based on the rules prescribed under Articles
51 and 52 of the Federal Penal Code (CPF) relating to the application
of sanctions, circumscribing them to the existing conditions
corresponding to the stage in the proceedings, and without disregarding
the fact that the exercise of the aforementioned authority is not arbitrary
but subject to principles of justice and to the fact that offenses are
sanctioned by way of a minimum and a maximum. In turn, the Second
Collegiate Court of the Sixteen Circuit did not pronounce itself on the
rules to be followed by the Judge in the proceedings to establish the amount
of the bail, given that, in the cases resolved, it considered that a
modification of the corresponding bail was not valid because no changes
had been made to the conditions permitting such a possibility.
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RELEVANT DECISIONS
In turn, the Third Collegiate Court of the Sixteen Circuit considered
that in order to establish the bail amount for the defendant, it is correct
to observe Articles 51 and 52 of the Federal Code of Penal Procedures
(CFPP), relating to the quantification of sanctions. This does not imply
that the prison term imposed on the defendant is predetermined in case
he or she is found guilty. According to the legal provisions, conditions
that are external to the case and those specific to the defendant and the
gravity of the circumstances of the offense imputed should be considered.
The Fourth Collegiate Court of the Sixteen Circuit, on the other
hand, affirmed that it was incorrect that whenever the amount payable
by a defendant to be released on bail was established, it was necessary
to base this on the monetary fine concept, basically the maximum fine
amount prescribed under the law, just as it was invalid to establish
the amount of the fine on the basis of a prior individualization of the
possible sanction that could be applied upon dictation of the final
sentence. The Court added that neither of these two ways of making
such a determination abided by that established under Article 399,
Section II, of the CFPP, in accordance with which the bail established
to guarantee monetary sanctions to be imposed was determined. This
content reflects an expectation before a possible application of a sanction,
which is firstly contingent upon the condition that the full responsibility
of the defendant has been accredited in order to subsequently individualize
the respective sanction. These situations impede the defendant from
being attributed any degree of guilt that may serve as a basis to establish
the bail for the concept of the fine. For such reason, it is necessary to
abide by the minimum amount within the parameter established by
the applicable provision for this ensures that no prejudgment whatsoever
is made as to the accreditation of responsibility or the degree of guilt
of the defendant, which is characteristic of a final sentence. Thus, upon
issuance of the concrete sentence, any level above the minimum at
which the guilt of the defendant may be qualified and may be conducive
to the application of a fine to such a degree will not be detrimental in
any way, on the understanding that a degree that is lower than that
established under the law may be set. On the other hand, any decision
of the Judge hearing the case qualifying the defendant above the
minimum level of guilt, regardless of whether this is simply for purposes
of establishing the amount for the bail, would cause irreparable damage
in the event that, at the conclusion of the proceedings, a minimum
level of danger was attributed to the defendant, for that would imply that
he was unduly impeded from gaining access to release on bail, and was
required to pay a guarantee supporting a fine that was never imposed.
This is not the case if a minimum amount is considered for, in that
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305
case, any amount of the sentence would not generate any detriment
whatsoever in relation to the release on bail of the defendant.
Finally, the Fifth Collegiate Court of the Sixteen Circuit was of the
opinion that, because neither Article 20, of the Federal Constitution,
nor the ordinary penal legislation indicate the rules to be followed in
order to establish the amount guaranteeing the monetary fine payable
by the defendant, then the minimum fine established for the offense
attributable to the plaintiff should be taken as a parameter and not
the maximum, nor that resulting between the minimum and the
maximum sanction, for that goes against the principle of presumption
of innocence.Therefore, Articles 51 and 52 of the CPF, cannot be applied
analogically to grade between the minimum and the maximum fine to
be imposed.
The Court established the divergence of criteria and issude its
ruling.144 The Court determined that Article 20, Subsection A, of the
Federal Constitution, indicates that, in order to resolve on the form
and amount of the bail, the Judge must examine the nature, type, and
circumstances surrounding the offense; the characteristics of the
defendant, and the possibility of fulfilling procedural obligations;
damages caused to the defendant and the economic sanction that may
be imposed on the defendant. This, attending to the legislative process
that preceded the reform of the aforementioned constitutional Article,
published in the Federal Official Gazette on July 3, 1996, it can be
concluded that, upon establishing the amount of bail payable by a
defendant to be released on bail, it is not necessary to always indicate
the minimum amount of the monetary sanction, and the maximum
amount is not applicable either. Instead, the grading of such bail is left
to the prudent arbitration of the judge, who must evaluate the specific
circumstances of the defendant and the perpetration of the crime, and
must observe the rules prescribed by the aforementioned constitutional
provision. This does not imply that the fact of establishing an amount
for the fine that is in excess of the minimum fine that would be
applicable in light of the offense in question is predetermined on the
accreditation of the responsibility or the degree of guilt of the defendant.
Rather, the aim is to protect both the victim and society by impeding
the perpetrator from avoiding the action of justice and to continue
offending to its detriment, regardless of whether this happens up to
the time the final sentence is dictated when it can be done.
144
Ruling 1a./J. 111/2005, ib., p. 437.
AUGUST
2005
It is admissible to fine Prosecuting Officers who
file complaints without reason
Appeal 216/2005-PL, derived from direct amparo under review
1124/2005. Appellant: Officer of the Prosecuting Authorities assigned
to the First Collegiate Civil Court of Circuit Two. August 10, 2005.
Upon resolving appeal 216/2005-PL, the First Chamber of the Supreme
Court examined two interdependent questions: 1) whether it is feasible
to fine an officer of the Prosecuting Authorities assigned to a Court for
filing an irrelevant appeal derived from a civil amparo lawsuit, and
2) whether such recourse is groundless.
In the first place, the Chamber advised that Article 103 of the
Amparo Law (LA) makes no distinction as to which of the parties
appealing against a decision before the Supreme Court may be subject
to a fine, so this should be taken to apply to all: plaintiff, responsible
authority, aggrieved third party and, of course, the officer of the
Prosecuting Authorities.
In second place, the First Chamber was of the opinion that in
matters of this nature —derived from the dismissal of an appeal filed
against the decision dictated in direct civil amparo proceedings— the
recourse is deemed invalid if it results notoriously groundless or
inadmissible and the individual responsible for instituting such
proceedings is considered to be aware of the available means of
challenging in amparo related issues.
For the First Chamber it was evident that the officers of the Prosecuting
Authorities assigned to the Circuit Collegiate Courts are professionals
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RELEVANT DECISIONS
well versed in legal science and must be considered to know the normative
system governing the admissibility of recourses as provided under the
LA, given that their constitutional and legal performance specifically
involves guaranteeing the regularity of amparo proceedings. In this
respect, Article 107, Section XV, of the Federal Constitution, and Article
5, Section IV, and Article 181 of the LA, among others, result
categorical.
Consequently, the First Chamber observed that if the Prosecuting
Authority officers assigned to the Circuit Collegiate Courts file an appeal
in a direct amparo that is notoriously inadmissible and, more so,
subsequently file an appeal against the decision to dismiss such an appeal,
and that results equally deficient given that impossible legal requests are
made, it should be concluded that such officers act without motive and,
consequently, should be subject to the imposition of the maximum
fine possible. 145
The First Chamber determined that, in this appeal recourse
(216/2005-PL), the extremes indicated were updated because the
appellant, an agent of the Prosecuting Authorities assigned to a Circuit
Collegiate Court, instituted an appeal in a direct amparo inadmissibly
and insisted that it should be admitted by making claims related only
to the plaintiff along with legally inadmissible petitions —such as that
relating to exercising the power of attraction over a matter not involving
a study of constitutional considerations.
The First Chamber indicated that, by instituting the aforementioned
proceedings, the plaintiff contributed to the subsequent unjustified
burden of work at the Supreme Court and contributed to delaying the
processing and conclusion of other matters —by distracting attention
through a case resulting from his unfounded appeal— without justifiable
cause, this reinforced the conviction that his performance was to be
sanctioned. It was thus admissible to impose the fine prescribed in Article
103, last paragraph, of the LA, consisting of 120 days’ minimum salary.
The Chamber clarified that this fine was to be computed on the
basis of the minimum general salary in force for the Federal District at
the time of perpetration of the conduct leading to the sanction, in
145
Ruling 1a. CXXV/2005, ib., p. 699.
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accordance with Article 3 bis, of the LA; which, on the date of institution
of the appeal recourse —July 8, 2005— was equal to $46.80 Pesos,
multiplied by 120 days, totaling $5,616.00 Pesos payable by the
offender. The Chamber ordered that such a fine be made effective
immediately by means of the Local Tax Management Office through
its established execution procedure.
Decision 2/2000 of the Joint Council for the
Interim Agreement on Commerce and Related
Matters between the United States of Mexico
and the European Community is constitutional
Amparo under review 1725/2004. August 17, 2005. Opinion delivered
The party seeking amparo, a Mexican company involved in an
international tender for the acquisition of generic drugs, filed claims
against the Economic Association, Political Agreement and Cooperation
Convention signed by Mexico and the European Community and its
Member States; Article 25 of the Decision of the Joint Board of such
Convention, and Decision Number 2/2000 of the Joint Board of the
Interim Agreement on Related Trade Matters signed by Mexico and
the European Community on June 23, 2000 and published in the
Federal Official Gazette three days later.
The First Chamber of the Supreme Court observed that the
plaintiff had been permitted to take part in an international public
tender and, although its projects did not meet with approval, that did
not represent a violation of its right to labor freedom (Article 5 of the
Federal Constitution) or of Article 134 of the Constitution.
The Chamber recalled that freedom to work is not contemplated
in an unrestricted or unlimited manner but is instead conditioned to it
being legal work that does not affect the rights of third parties or of society
in general. Moreover, for such right to be effective, it should be understood
without detriment to the subjection of various provisions dictated by
the legislative authorities to regulate its realization and to protect public
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RELEVANT DECISIONS
interest. As for constitutional Article 134 —regulated by the Acquisitions,
Leasing and Public Services Law (LAASSP)— it contains the guiding
principles (efficiency, efficaciousness, and honesty) governing the
management of public resources of the Federal Government and Federal
District. It contemplates that the acquisitions, leasing, and sale of all types
of goods, rendering of services of any nature, and contracting of work
carried out, must be allocated or carried out through public tenders. 146
The First Chamber determined that the right to work freedom
had not been violated by establishing that the international public
tenders permit a denial of participation by foreigners whenever no
agreement has been signed with the country of origin of such foreigners
and whenever a given foreign country does not grant reciprocal
treatment to bidders, suppliers, goods or services from Mexico. The exercise
of any profession, industry, trade, or work is not impeded, but is only
authorized in the case of agencies and entities calling for a public tender,
who deny the participation of foreigners in the aforementioned situations.
This is justified because the public interest is opposed to the individual
interest, that demands that the State look for the conditions most
favorable to its national economic development.
On the other hand, the Chamber considered that Article 25 of
Decision No. 2/2000 and the aforementioned Association Agreement,
by establishing a reservation or condition on the participation of
European Community products in public tenders of the Mexican Social
Security Institute (IMSS), for which there is an effective patent in
Mexico, is derived from an agreement made between such Community
and Mexico, accounting for the fact that trade relations between the
subjects of the two contracting parties are governed by that established
by such relations. The Chamber considered that, upon signing
international treaties and agreements (including those of a commercial
nature), one of the governing principles is that of reciprocity, given
that the contracting parties make mutual concessions for purposes of
mutual benefit. Moreover, reservations pertaining to their nature as
sovereign entities may also be made by way of certain conditions
established for the convenience of each party, as in the case of
protection for industry. The above led the Chamber to conclude that it
is not possible to compare the treatment given to products derived
from a country with which an international treaty has been signed as
146
Ruling 1a. LXXVII/2006, ib., t. XXIII, April 2006, p. 157.
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compared to those derived from another country with which no treaty
of that type has been signed or whenever an agreement under different
conditions has been signed.
The First Chamber noted the fact that the European Community,
by negotiating the treaty with Mexico, was aware of the reservation
and duly agreed with it, for it signed the aforementioned international
treaty. Consequently, the plaintiff is not forbidden from engaging in
the activity routinely engaged in nor is he impeded from marketing
such products with the official health institutions. He is only subject to the
imposition of a single legal requirement in the sense of having to obtain a
current Mexican patent, which is permitted under constitutional Article 5.
Although constitutional Article 134 does not establish the indicated
limitation to participate in public tenders, the truth is that such limitation
can be validly established under the law.
Thus, the First Chamber was not of the opinion that the equity
guarantee was violated as a result of not giving equal treatment to
pharmaceutical products originating from the European Community
and countries not belonging to such Community given that they are not
under equal conditions. They are governed by a specific trade agreement
that might not be existent in the case of products derived from another
country or, if existent, could dictate other conditions.147
In fact, constitutional provisions 5 and 134 are not transgressed
by the agreement given that they only establish general provisions to
be signed by the countries entering into such agreements, in accordance
with internal legislation in terms of complying with the requirements
to be admitted to any public tender established under the LAASSP,
without detriment to that contemplated in related treaties signed by
the Federal Government. Therefore, by permitting the plaintiff to
participate in an international public tender in conformity with the call
for bids previously approved in terms of the LAASSP, the guarantees
established in the aforementioned constitutional precepts are attended
to at all times and, although the result of such tender was not in
accordance with the interests of the plaintiff, this does not mean that
Article 25 of decision number 2/2000, specifically, Agreement XI,
Transitory Provision 6, as well as the Interim Agreement between
Mexico and the European Community, contravene any constitutional
147
Ruling 1a. LXXIX/2006, ib., p. 152.
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RELEVANT DECISIONS
norm. 148 Such instruments include the general rules governing
requirements, conditions, and the time period of application, which
cannot be deemed to violate the Constitution. 149
It should be emphasized that Justice José de Jesús Gudiño Pelayo
differed from the majority and issued his own particular vote.
148
149
Ruling 1a. LXXX/2006, ib., p. 152.
Ruling 1a. LXXVIII/2006, ib., p. 151.
Amparo Proceedings are not the means of
challenging laws or acts relating to the exercise
of political-electoral rights
Amparo under review 743/2005. Jorge Castañeda Gutman. August
8 and 16, 2005. Opinion delivered by Justice Sergio A. Valls Hernández.
The Supreme Court exercised its power of attraction to hear and resolve
the appeals for review filed by the plaintiff and by the Executive Director
of Prerogatives and Political Parties of the Federal Electoral Institute,
against the decision not to prosecute issued by the District Judge in
the proceedings whereby the unconstitutionality of Articles 175, 176,
177, first paragraph, subparagraph E), and 178 of the Federal Institutions
and Electoral Procedures Code (COFIPE) was challenged, published in
the Federal Official Gazette dated August 15, 1990, as well as the related
concrete act of application.
The bench of the Supreme Court, advised that the principle aspect
to be clarified in the matter at hand involved determining whether, against
electoral laws and acts, or voters that have a substantial relation with
the exercise of political rights, indirect amparo proceedings are
admissible.
After analyzing the electoral justice system contemplated in the
Federal Constitution, as well as the nature and object of the amparo
proceedings, the Court indicated that constitutional Articles 94, 99,
and 105, make it evident that the authority to resolve a contradiction
involving electoral norms in the Federal Constitution is fully limited by a
constitutional mandate to the Supreme Court. The Electoral Court is
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316
RELEVANT DECISIONS
a specialized body belonging to the Federal Judiciary, and its exclusive
authority is meant to guarantee the specialization, objectivity, and
impartiality in the exercise of legal duties in the electoral field, and to
monitor the electoral-political rights of citizens, verifying that the related
acts and resolutions passed are in accordance with the constitutional
and legal juridical framework. Thus the Electoral Court is required to
arbitrate any act or resolution, or hear the interpretation of a constitutional
provision, provided it is not for purposes of verifying that an electoral law
is in conformity with the Constitution.
Likewise, the Court specified that Article 103, Section I, of the Federal
Constitution, as well as Articles 1 and 73, Section VII, of the Amparo
Law (LA), make it evident that the amparo proceedings are a procedural
constitutional guarantee aimed at safeguarding fundamental rights in
face of acts of authority or laws, and that they are inadmissible against
resolutions and declarations of electoral bodies and authorities.
The analysis of the evolution of the legal criteria issued with
respect to such grounds for inadmissibility led the Court to maintain
that the governing criterion should be that, in the case of laws or acts
relating to political rights or to the electoral sphere, amparo proceedings
are invalid, and only exceptionally may such laws or acts be contested
through an amparo providing they are strictly related to the possible
violation of rights.
The legal provisions challenged are related constitutional to the
procedure used to register candidates for popular election posts in
the federal sphere —establishing that the right to request the registration
of such candidates pertains exclusively to the national political parties—
along with the related deadlines and principles to which the political
parties must adhere. Thus, the Court, advised that the plaintiff basically
argued that his fundamental or human right to run as a candidate and
obtain votes was jeopardized (contemplated under Article 35, Section
II, of the Federal Constitution). His claim was that by means of an amparo,
the responsible authorities should be required to rectify the "legislative
omission" challenged, by having to establish under the norm in question
the possibility of independent candidatures for the popularly election post
of President of the Republic and that, consequently, through guarantees
proceedings, the plaintiff be granted constitutional protection to obtain
his registration as an independent candidate to such post, which he
estimated constituted a totally political-electoral issue.
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In this regard, the Court established that, although constitutional
rights also include civil and political rights, this does not modify or
alter the fact that, in conformity with constitutional Article 35, Section
II, running as a candidate for a popular election post is a prerogative
of a political nature that is granted to citizens, and whose exercise is
necessarily related to the provisions of —constitutional Articles 41 and
116, Section IV— regulating matters pertaining to the renewal of public
powers. Consequently, this cannot be the object of amparo proceedings,
given the electoral justice system established in the Mexican constitutional
order. It was also established that the exception is that whenever, along
with a violation of political right, laws or acts that involve the transgression
of individual guarantees are challenged, amparo proceedings are
admissible. In such cases, the crux of the matter involves resolving on the
exercise of the political-electoral right of being voted on as a candidate,
for which the unconstitutionality proceeding is ideal, not the constitutional
control methods heard by the Electoral Court.
Thus, given the above considerations, the Court confirmed the
sentence appealed.
317
All interventions excluding property or interest
or credit preference in labor matters are lawsuits
by nature and not incidents, meaning that the
resolving decision may be challenged through a
direct amparo
Collegiate Court of the Sixteen Circuit, First Collegiate Court of
the Sixth and First Circuit Collegiate Court of the Second Circuit.
August 19, 2005. Opinion delivered by Justice Sergio Salvador
Aguirre Anguiano.
The Third Collegiate Court of the Sixteen Circuit, upon deciding direct
labor amparo 138/2005; and the then First Collegiate Court of the
Second Circuit, now the First Collegiate Criminal Court of the Second
Circuit in its decision relating to direct amparo 41/88, and the then
First Collegiate Court of the Sixth Circuit, now First Collegiate Civil
Court of Circuit Six, upon resolving amparo 42/88, upheld differing
rulings with respect to the following matter: whether in labor law, third
party claims must be considered an application or an independent
lawsuit of the principal and, consequently, whether the direct or indirect
amparo that serves to resolve such application or lawsuit is valid.
The Third Collegiate Court of the Sixteen Circuit maintained that,
in conformity with Article 107, Section V, subparagraph a), of the Federal
Constitution, and Articles 44 and 158 of the Amparo Law (LA), direct
amparo proceedings are only admissible against final sentences, awards
or resolutions that mark the end of the lawsuit, dictated by judicial,
administrative, or labor courts. Thus, given that the resolution in question
had been dictated in a preferential credit application, instituted when the
main lawsuit was in its execution stage, it was of an incidental nature
that did not resolve the main lawsuit. It had been issued outside the lawsuit
meaning that the indirect amparo proceedings were not admissible.
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RELEVANT DECISIONS
For its part, the First Collegiate Criminal Court of the Second
Circuit adduced the contrary: that third party claims in all matters are
considered lawsuits, both materially and formally, given that an action
of objection is exercised in such proceedings that must necessarily be
resolved by means of a process respecting the formalities of law.The
plaintiff must file his appeal, supply supporting documentation and
evidence accrediting his action, and the disclosure of evidence period
is made effective for the parties to demonstrate their claims, and present
the related arguments, for a subsequent resolution to be dictated that
is considered a sentence.
The First Collegiate Civil Court of the Sixth Circuit, coinciding
with the criterion of the above Collegiate Court, was of the opinion
that third party claims in the labor sphere are veritable lawsuits both in
form and content, for they involve the hearing of an action that must be
resolved through a process requiring respect for essential formalities, as
established in Articles 976 to 978 of the Mexican Labor Law (LFT).
This makes it evident that the third party must institute the proceedings
—accompanied by the relative supporting documentation— and
provide pertinent evidence. A hearing must also be held in order to
hear the parties and whereby a resolution is subsequently dictated. It was
also added that, although third party claims are processed incidentally,
this is because they represent an autonomous lawsuit, in turn meaning
that the final sentence derived from such application may be contested
through a direct amparo.
The Second Chamber of the Supreme Court was required to
determine whether the third party claim must be considered an application
or an independent proceeding of the principal in labor matters and,
consequently, whether against the resolving resolution a direct or indirect
amparo is admissible. In its decision, which would resolve the controversy,
it coincided substantially with the criterion of the First Collegiate
Criminal Court of the Second Circuit, as well as that of the First
Collegiate Civil Court of the Sixth Circuit.
The Second Chamber established that Articles 976, 977, and 978,
of the LFT, indicate that third party claims to ownership or preemptive
third party claims have the characteristics —both materially as well as
formally— of a lawsuit and not an application. Even though the second
of the precepts cited establishes that they are to be processed in an
incidental manner, such an allusion only refers to the procedural form
and not to its substantial nature given that, while an application generally
resolves matters of a procedural nature, the third party claims decide
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substantive aspects (the ownership of the property embargoed or the
preference of the credit claimed), which is alien to the question exposed
in the lawsuit from which it originates. This materially converts it into
a lawsuit with its own substantivity. Moreover, the third party is alien
to the main controversy and, by exercising a new action, must accredit
its own interest other than the interest of those that are parties to the
suit. The new action is heard separately through a singular procedure
where the third party has the rights, charges, and obligations of all
parties in a lawsuit and does not suspend the course of the preexisting
lawsuit. This demonstrates that third party claims are normally lawsuits
and, consequently, that the resolutions that decide such lawsuits,
because they are final sentences, may be challenged through a direct
amparo, in accordance with Articles 44, 46, and 158 of the LA.150
150
Ruling 2a./J. 126/2005, ib., t. XXII, October 2005, p. 952.
321
The Electoral Law of Jalisco does not violate
the internal operation of political parties
Unconstitutionality Dispute 13/2005. Partido del Trabajo. August 22,
The bench of the Supreme Court, heard the unconstitutionality proceeding
instituted by members of the National Coordination Commission of Partido
del Trabajo, requesting the invalidity of Articles 56, 56 bis, and 57, of
the Electoral Law of Jalisco, for allegedly representing an invasion of the
internal life of political parties to the detriment of Article 41, Section III,
and Article 116, Section IV, of the Federal Constitution.
The Court, began by indicating that the analysis of Sections I
and II of constitutional Article 41, indicates that a normative system is
established therein for electoral purposes, whereby general guidelines
are established governing our federal system and that, consequently,
the federal and state authorities are connected in their respective
spheres authority. However, Section III is not applicable to the Electoral
Institutes of the states, for it refers specifically to federal elections and
to the Federal Electoral Institute as an autonomous public body. For
this reason, it concluded that, because it was not applicable to the
state sphere, the violation of the constitutional precept was groundless.
On the other hand, in the sense that the challenged laws violate
Article 116, Section IV, of the Federal Constitution, the Court indicated
that, although the rules governing political parties should be taken
323
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into consideration, as well as their objectives, purposes, and constitutional
principles in electoral matters, there is no single law establishing specific
authority for the electoral authorities of each state in relation to the
internal life of the parties.
Likewise, the Court emphasized that political parties must comply
with the democratic principle inside their organization in order to
effectively fulfill their constitutional aims. For this reason, it advised
that, although the parties are protected by the freedom of association,
they are not totalley free to do as they wish in relation to statutory matters.
The legislature must establish the norms conducive to ensuring
compliance of the aforementioned principle in the electoral laws.
Having established the above, the Court inferred that, in the first
place, Article 56, Sections II, III, and V, regulates aspects that cannot
be considered undue invasions of the parties. The legal provision
establishes, among other things, that political parties must include in
their statutes certain affiliation procedures and democratic processes
for the election of candidates to popular election posts and for its
administrative bodies, as well as the monetary compensation for their
activities, powers, and obligations. The sanctions applicable to the
members contemplated in such statutes must be well grounded and
motivated, and imposed by the previously established bodies.151
Moreover, with respect to Article 56 Bis, in accordance with which
the statutes are required to establish clear procedures for the election
of leaders, guaranteeing the guiding principles of the electoral sphere,
and also establishing that they must contemplate rules to ensure certainty
for members with regard to the duration and renovation of their terms
of office, election processes and substitution of leaders, the Court indicated
that, by guaranteeing the effective promotion of the people into democratic
life, it does not imply an undue meddling in internal matters of political
parties.152
Finally, in relation to Article 57 of the Electoral Law of the State
of Jalisco, the Court, indicated that the autonomy and independence of
political parties is not called to doubt and, therefore, respect is given
to constitutional Article 116, Section IV. Its text makes it evident that
the state institute does not intervene in the logistical aspect of the party’s
151
152
Ruling P./J. 142/2005, ib., November 2005, p. 154.
Ib.
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elections, but merely indicates that, along with the requirements for
the creation of a political party, it is necessary to prove the celebration
of various meetings, complying with determined conditions, which are
witnessed through the presence of a notary public. 153
153
Ruling P./J. 143/2005, ib., p. 112.
325
The First Chamber of the Court specifies the
field of application of the right to tax equity
Amparo under review 1629/2004. August 24, 2005. Opinion delivered
by Justice José Ramón Cossío Díaz.
In the matter under review, the First Chamber of the Supreme Court
confirmed the sentence appealed by considering that the grievances
claimed by the appellant —the plaintiff in the original lawsuit— were
groundless. The decision of the Chamber was based on a study of the
grievances presented by the appellant aimed at discrediting the a quo
resolution which denied the amparo and protection of the Federal
Courts against Articles 1, 2, and 7, of the Asset Tax Law —claimed as
from its entry into force and through to its current text in 2002— relating
to the "Decree whereby the payment of the taxes in question is not
required and administrative facilities are granted to various taxpayers",
published in the federal Official Gazette dated May 31, 2002. Under
the mentioned law, certain taxpayers are released from asset tax
payment their income and the value of their assets for the year 2001 do
not exceed the amount of $14,700,000.00.
Thus, in his arguments, the appellant claimed that, contrary to that
maintained by the a quo, the benefit granted through the aforementioned
decree represented an authentic tax exemption affecting the tax
payment system applicable to such persons. The Chamber indicated
that, although a category of taxpayers not required to pay the tax
by being excluded from the tax accrual hypothesis was not created by
means of an exemption, determined subjects were released from the
327
328
RELEVANT DECISIONS
obligation of having to pay the tax by means of an exoneration
established by the Executive in terms of Article 39, Section I, of the
Federal Tax Code (CFF).
The Chamber considered that both measures —exemptions and
exonerations— basically mean that the taxpayer is released from the
payment obligation —by ceasing to be qualified as taxpayers under
the exemption, and by recognizing that the tax authorities will not demand
payment of such tax, in the case of the exoneration. Consequently, for
the design, establishment, administration, handling, and utilization of the
two measures, the state is required to abide by the constitutional
postulates safeguarding the fundamental rights of citizens. 154
Thus, the Court determined that the exercise of the authorities
conferred to the Executive under Article 39, Section I, of the Federal
Tax Code —a numeral that serves as a basis for the issuance of the
Decree exonerating the individuals from tax payment— is not exempted
from constitutional control. The particular legal consequences that
directly affect the sphere of taxpayers are reviewed through such channel.
Having indicated the above, the Chamber added that it is
indispensable to respect the right of tax equality by delimiting the sphere
of application of the tax authority by means of general provisions, as
is the case whenever assumptions are established whose result is a
release from tax payment, either by means of the legal text itself or by
means of a decree issued by the Executive.
Likewise, it added that it was necessary to take into consideration
that —both under "regular" conditions as well as under "extraordinary"
conditions as referred to in Article 39, Section I, of the Federal Tax
Code— the protection of the right to tax equality is the established
means to procure the effectiveness of a fair economic and social order
that represents the foundation of any tax system that can only be
legitimated by such means. The Constitution brings together different
facets of equality, sometimes referring to a general system and other
times operating in a specific material sphere, without establishing cases
of exception for purposes of application.
In this context, the Chamber was of the opinion that it was
necessary to delimit the content and scope of the right to tax equality
154
Ruling 1a. CXXXIV/2005, ib., p. 37.
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It indicated that the content of the right to tax equality may come down
to the fact that the passive subjects of a same tax are required to be in
a situation of equality in face of the law establishing and regulating
such tax. In this way, the Chamber recognized that the specific sphere
of application of tax equality must necessarily lead —recognizing that
the Constitution does not establish exceptions to the equality guarantee—
to the fact that whenever the respective provisions do not correspond
with such right —that is to say, in the case of legal norms not referring
to taxes, exemptions or to the delimitation of tax obligation— the
arguments denouncing the existence of a differential or discriminatory
treatment should be analyzed in the more broad context corresponding
to the right to equality.155
Likewise, the Chamber determined that constitutional control over
the principle of equality must take into consideration whether the norm
governing the distinction in treatment is well-grounded and motivated
—specifying the considerations on the basis of which its author makes
such a distinction as the matter for which constitutional control over
the acts of the authorities is exercised— and whether there are sufficient
grounds justifying unequal treatment. It also added that, whenever
the cases whereby the authorities introduce a differentiation as a means
of obtaining a determined end, it is worth observing that the first of these
is proportional to the second and, additionally, that it does not produce
disproportionate effects in terms of other legal interests.156
Thus, the Chamber considered that it does not suffice for the
measure to have a legal basis, but it is also necessary for its application
not to affect —or to have the minimum possible effect— on the legal
interests of other persons or groups.
The Chamber indicated that in the case of economic or tax norms,
the related analysis must not generally be of a strict nature so as not to
jeopardize the political freedom of the legislature in fields such as the
economic field, where the Constitution itself establishes an ample right
to intervention and differentiated regulation powers for the State. A very
strict control in such spheres would impel a constitutional judge to substitute
the legislative function of the Congress —or the extraordinary function
of the Executive—passing on such responsibility to the political agencies
155
156
Ruling 1a. CXXXVI/2005, ib, p. 39.
Ruling 1a. CXXXIX/2005, ib, p. 36.
329
330
RELEVANT DECISIONS
for them to analyze whether the economic classifications are the most
suitable or necessary. It also added that the regulatory force of the
democratic and separation of powers principles have the consequence
of making other State bodies —including the constitutional judge—
respect the liberty of configuration that is inherent in the Congress and
the Executive, within the framework of their authorities. Given the greater
discretionality held by these bodies in the economic sphere, the possibility
of interference in such subjects, held by the constitutional judge, is less
and, consequently, limits the intensity of control.157
Finally, analyzing the challenged act based on the elements indicated,
the Chamber was of the opinion that the ends sought by the Executive
when issuing the act in question —the decree granting an asset tax
payment exoneration— is fully acceptable in light of that prescribed
under the Federal Constitution. The measure established in such document
is in accordance with its purposes, and the normative instrument is
reasonable considering the proportion of the decree measure in relation
to the achievement of objectives outlined. Thus it cannot be considered
a law that provide that privileges some people over others.158
Consequently, the Chamber concluded that the measures decreed
by the Executive do not jeopardize any individual right whatsoever.
Whenever the Executive exercises the extraordinary powers referred
to under Article 39, Section I, of the Federal Tax Code, this is not
necessarily linked to specific circumstances —regardless of whether
they are of a tax nature or not— but, rather, the establishment of such
criterion is confined to a broad framework of liberty legally granted for
the design of the legal measure deemed necessary to confront special
circumstances. Thus the sentence appealed was confirmed, denying
the amparo and protection of the Federal Courts to the plaintiff.159
Ruling 1a. CXXXV/2005, ib., p. 33.
Ruling 1a. CXXXVII/2005, ib, p. 31.
159
Ib.
157
158
Admissibility of suspension of amparo proceedings
against all acts of registration or inscription of
the temporary disqualification of public officials
Resolution to Opposite Rulings 122/2005-SS. Between the Ninth
and Seventh Collegiate Administrative Courts of the First Circuit.
August 24, 2005. Opinion delivered by Justice Margarita Beatriz
Luna Ramos.
The Ninth Collegiate Administrative Court of the First Circuit maintained
that the suspension dictated in amparo in relation to the act of registration
of a temporary disqualification sanction, applied in terms of the Federal
Government Workers Responsibilities Law (LFRSP), does not violate
provisions of public order and social interest. Such sanction only seeks
to prevent the citizen from carrying out the acts prohibited under said
legal system and, should such measure not be granted, the image of
the petitioner would be irreparably affected. For its part, the Seventh
Collegiate Administrative Court of the First Circuit was of the opinion
that in case of the registration of a public official who has been sanctioned
with temporary disqualification in terms of the LFRSP, it is not valid to
grant the suspension for this would represent a violation of the public
order provisions. The social interest would be affected given that the
party sanctioned could immediately take up another public position in
light of the fact that the existence of the disqualifying sanction imposed
could not be verified in the files.
The Second Chamber of the Supreme Court was required to examine
whether under the requirement found in Section II of Article 124, of the
Amparo Law (LA) as far as the acts of registration of a temporary
disqualification sanction imposed in terms of the LFRSP were concerned,
no prejudice should be caused to the social interest and no public order
provisions should be contravened in granting the suspension.
331
332
RELEVANT DECISIONS
The Chamber established that the amparo Judges and courts do
not visualize the public interest obstacle prescribed under the
aforementioned Article 124, Section II, in the case of suspension
of the acts of registration of administrative sanctions, as in the case of
the temporary disqualification of the respective government worker.
The marking or registration in the files of the administrative authorities
of the imposition of the temporary disqualification sanction affects the
right of the citizen to protect his image in the personal and professional
fields.
The Second Chamber considered the interests of the citizen to be
superior on the basis of the necessary respect to be given to the right
to protect his or her own image, to the interest consisting of registering,
for administrative and preventive purposes, the sanction imposed on
the citizen whenever the legality of such sanction is questioned by
means of a guarantees lawsuit.
The Chamber indicated that in the course of time —without the
possibility of suspending the acts of authority under challenge— this
can violate the legal sphere of an individual in an irreversible manner,
which takes on constitutional relevance in the sphere of the right of
access to actual legal custody. It also noted that such conclusion does
not impede the social interest by way of the registration of the imposition
of temporary disqualification sanctions that could involve the
realizations of more serious conducts than those originating from a
temporary suspension, given that the process instituted by the aggrieved
party is precisely aimed at examining whether such acts of sanction
have been applied in conformity with the law.
Finally, the Second Chamber resolved, némine discrepante, that
the temporary disqualification and registration do not seek to safeguard
government service in a direct manner, for they imply a sanction
inscribed in the central administrative files aimed at ensuring that the
offender does not relapse in the respective conducts, disqualifying him
in such a way for a determined period of time. Thus, the public interest
is not affected by granting the suspension of the act of registration,
especially given that the related registration is a matter that can wait
until the final sanction resolution has been dictated and because once
the term of the sanction has expired, the individual may reenter the
public service.160
160
Article 194 of the State of Mexico Criminal Code
does not infringe the right to legality, assembly,
association and freedom of movement
Direct amparo under review 1204/2005. August 31, 2005. Opinion
The matter under review involved studying the grievances alleged
by the appellant against the resolution dictated by the a quo, exclusively
in terms of that referring to the unconstitutionality of Articles 191 and
194 of the State of Mexico Penal Code in order to determine whether
such precepts violated the right to freedom of association, assembly, transit,
and legality, contemplated under numerals 9, 11, and 14, of the
Constitution.
In this respect, the Chamber determined that the grievances
alleged by the appellant were groundless and that Articles 191 and 194
of the State of Mexico Penal Code are not unconstitutional.
In fact, with regard to the violation of Article 14 of the Federal
Constitution, contemplating the right to legality —exact application of
the law in penal matters—, 161 the Chamber considered the definition
found in Article 194, in relation to 191, of the State of Mexico Penal
Code, providing for the crime of "attack on communication routes and
means of transport", to be clear and precise. It contains the elements
necessary for their accreditation, thus endowing the citizens with legal
161
Las garantías de seguridad jurídica. Colección Garantías individuales, No. 2, 2a.
ed., México, Suprema Corte de Justicia de la Nación, 2005, pp. 62-69.
333
334
RELEVANT DECISIONS
certainty insofar as they are given the possibility of specifically knowing
the conduct sought to be prohibited by the legislature by means of the
creation of such penal type.162
Moreover, with regard to the violation of Article 9 of the Federal
Constitution, which contains the right to association and assembly, 163
the Chamber determined that, as indicated by the respective Collegiate
Court, Articles 191 and 194 of the State of Mexico Penal Code do not
transgress the aforementioned rights. No connection is considered to
exist between the determination of the State Congress in the sense of
sanctioning by penal and not administrative means —for criminal policy
reasons— the conduct consisting of the deliberate hindrance of a route
of communication or the rendering of a local public communication or
transport service, and the fundamental assembly and association
right to. 164
Finally, with regard to the right to freedom of transit,165 contemplated
under constitutional Article 11, the Chamber indicated that such a
liberty lies in the power of all individuals to move around the territory
of the country without need for prior authorization or permission from
the authorities, or without the need for a passport or pass, identification
card, or any other requirement of this kind, and to freely enter and
leave the country without authorization or permission. Consequently,
it results incorrect that Articles 191 and 194 of the State of Mexico Penal
Code do not contradict the aforementioned reference, given that the scope
of such fundamental right goes beyond the mere transit right held by
the citizens within the country.
Likewise, with respect to this last aspect, the Chamber established
that the aim is to protect the constitutionality of the laws challenged in the
sense that the citizens of the State of Mexico should be able to freely use
the routes of communication and local public communication and
transport services; that is, they should be able to adequately transit
within the state by means of the routes created or destined for such
purposes. 166
162
Ruling 1a. CXLI/2005, Semanario Judicial de la Federación y su Gaceta, Novena
Época, t. XXII, November 2005, p. 34.
163
Las garantías de libertad. Colección Garantías individuales, No. 4, 2a. ed., México,
Suprema Corte de Justicia de la Nación, 2005, pp. 122-127.
164
Ruling 1a. CXLII/2005, Semanario Judicial de la Federación y su Gaceta, Novena
165
Las garantías de libertad, op. cit., pp. 140-141.
166
Ruling 1a. CXLIII/2005, Semanario Judicial de la Federación y su Gaceta, Novena
Grounds and motivation for competence
resolutions must be analyzed in light of Articles
14 and 16 of the Mexican Political Constitution,
respectively
Collegiate Criminal Court of First Circuit and the Third Collegiate
Court of the Tenth Circuit. August 31, 2005. Opinion delivered by
The contradictory rulings of criteria involved determining whether, in
the case of final sentences dictated by the courts, the grounds and
motivation for such sentences should be analyzed in terms of Article
16 of the Federal Constitution. The First Chamber of the Supreme
Court referred to the rights whose nature determines the process. Thus,
among the various guarantees contained in the second paragraph of
constitutional Article 14, supporting the so called "right to hearing", is
that relating to the essential formalities of the process referring to the
compliance of the fundamental conditions that must be fulfilled in this
judicial process to grant the potential aggrieved party complete
notification of the proceedings instituted by the plaintiff, with related
documents and annexes, thus offering him a reasonable opportunity
to respond in the best possible way within the required time. Moreover,
the parties or potential aggrieved parties should also be given a fair
opportunity to present any pertinent evidence conducive to supporting
the facts on which such evidence is based and to express any related
allegations; that is to say, the legal arguments which, on the basis of the
evidence presented, they deem necessary to present, in order for
the proceedings to be concluded by the resolution of the judge.
The Chamber indicated that the dictation of a resolution settling
the matters debated obliges the judge to decide the cases he or she
hears, considering all arguments adduced both in the proceedings and
335
336
RELEVANT DECISIONS
those supporting the related response and other claims made during
the proceedings, in order for the defendant to be condemned or
absolved, resolving on all contentious matters that may be the subject
of the case.
However, the First Chamber observed that this determination of
the judge cannot be detached from the first paragraph of constitutional
Article 16, which imposes the obligation for the authorities to ground
and justify their acts in due fashion. The reason for this is that individual
rights are subject to the considerations applicable regarding constitutional
supremacy in terms of Article 133 of the Constitution, in conformity
with which the Judges of each State are required to abide by such law,
despite contrary provisions or omissions that might exist in local
Constitutions or laws. This means that the resolutions issued must
undoubtedly comply with the guarantees of due process of law and
legality.
The First Chamber affirmed that the legal grounds and motivation
behind a judicial resolution lie in the exhaustive analysis of the points
comprising the litis, that is to say, in the study of the actions and
exceptions to the debate, based on the legal precepts that permit their
issuance and that establish the reasoning generating their issuance, as
well as the concrete exposition of special circumstances, particular
reasons, or immediate causes that may have been considered for the
issuance of such act, also requiring the existence of adequate motives
presented and the laws applicable to the case at hand.
In the opinion of First Chamber, the above was true because the
judicial resolutions presuppose due process of law, whereby the plaintiff
presents his claims based on the law and the defendant challenges
such claims by means of defenses and exceptions. It is the responsibility
of the judge to analyze these legal issues and resolve whether the action
has been evaluated, whether it is grounded, and whether exceptions
have been put forward.
Consequently, the Chamber assured, in the case of judicial
resolutions, the guarantee of legality is to ensure that the judge does not
pronounce arbitrarily but in keeping with the legal system, and ensure
that the citizen is able to establish whether the norms considered by the
judge in resolving the debate have been duly respected, which does
not necessarily require the precept to be quoted, given that an exhaustive
examination of the litis should uncover the logic behind the provisions
on which the resolution is based. Certainly, the absence of formality
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in failing to mention the supporting precepts expressly can be
overlooked whenever the legal grounds are implicit in the exhaustive
examination of the debate; that is, when the resolution is clearly derived
from the Article on which it is based. 167
167
Ruling 1a./J. 139/2005, ib., December 2005, p. 162.
337
SEPTEMBER
2005
The bench of the Supreme Court, pronounces
on the legislative process, life imprisonment,
and arrest in state law Chihuahua
Unconstitutionality Dispute 20/2003. Deputies comprising the
Sixtieth Legislature of the Congress of the State of Chihuahua.
September 6, 2005. Opinion delivered by Justice Juan Díaz Romero.
The deputies comprising the Sixtieth Legislature of the Congress of
the State of Chihuahua instituted unconstitutionality proceedings
requesting that the invalidity of Decree No. 790/03, issued by the
Congress of the State, and published on August 27, 2003, be declared,
whereby various articles of the Penal Code and Code of Criminal
Procedures, of the State of Chihuahua, were reformed and added to.
With regard to the concept of invalidity whereby it was argued
that the Justice and Human Rights Commission, recipient of the draft
reforms and additions presented by the State Executive for examination
purposes, was responsible for various violations of the legislative
process that led to the decree whose invalidity was sought, the bench
of the Supreme Court, indicated that this was groundless given that
the alleged violation did not transcend the general norms in question.
The Court, considered that if the deficiencies in the legislative procedure
took place in the issuance of the reforms and legal additions whose
invalidity was sought, they lacked transcendence as far as the final
decision of the State Congress. The Court added that, although in
conformity with the fundamental principles of representativeness and
democracy —consecrated in Articles 35, 36, 39, 40, and 41, of the
Federal Constitution—parliamentary minorities have a right to be
heard, it is also true that such minorities cannot, through procedural
339
340
RELEVANT DECISIONS
formalisms (not attending the sessions to which they were summoned
or not signing the respective documents, among others), hinder public
duties, for the consensus reached by parliamentary majorities must always
prevail, meaning that the alleged procedural defect cannot bring about
the invalidity of the law approved by the general assembly.168
To support the aforementioned, the Court, indicated that at the stage
in the legislative process where the Review Commissions intervene,
the object is to facilitate an analysis, discussion, and approval of the
bills of law for the Congress, meaning that the failure to observe some
of the intermediate or preparatory phases can affect the legislative
result. But such transcendence is not necessary but eventual, so that,
in order to determine if one such violation of the procedure jeopardizes
the law, the related analysis is required to point to an impotence that
cannot be overcome by means of the approval of the draft prepared
by the legislative organ with the quorum and legally required votes. It
was also added that, in the case under study, for the discussion of the
legal reforms draft report, the phases of the internal procedure of the
respective commission were duly complied with.
Moreover, with regard to the concept of invalidity which served
as a basis for the argument that Article 27 of the Penal Code of the State
of Chihuahua —whose second paragraph was added by means of the
decree whose invalidity was sought—, it could bring on the imposition
of the maximum custodial sentence of 100 years of imprisonment for
the crimes of voluntary manslaughter (in the case of women or minors)
and kidnap, all being actual concurrent offenses, thus becoming equal
to a life sentence, which is contrary to Articles 18, 22, and 133, of the
Federal Constitution.
Constitutional Articles 18 and 22 had already been interpreted
by the Court in the country in the sense that prison sentences are
primarily aimed at the offender being able to re-enter society on the
basis of work, training, and education with a life sentence, however,
even in the case that the offender should be rehabilitated, he would
not be able to return into the community, which would make the
sentence contrary to Article 22, which prohibits punishment that go
against custom and national norms.169 Despite this the Supreme Court
considered it convenient to make a fresh reflection on the principles
168
169
Ruling P./J. 3/2006, ib., t. XXIII, February 2006, p. 1172.
Ruling P./J. 127/2001, ib., t. XIV, October 2001, p. 15.
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341
contained the Constitution in regard to prison a custodial sentence, in
order to review whether a life sentence should be considered outlawed
by the Constitution itself. In this respect, it was indicated that a prison
sentence is not a punishment the goes against national custom and
norms or, for what constitutional Article 22 forbids is the actual content
of the sentence; that is to say, that which is an inhumane practice. It
also considered that, had it been the intention of the Constitution to
establish a limit to the duration of prison sentences, this would have
been clearly specified. Furthermore, it added that although the qualification
of "excessive" penalty is circumscribed by constitutional Article 22, into a
fine because such penalties are prohibited, this should not be construed
to mean, by extension, that the life sentence is also included, on the
understanding that in the case at hand, "excessive" does not refer to
the duration of the term of deprivation of freedom but to the fact that it
is not in accordance with the gravity of the illegal conduct. That is to
say, that the sanction exceeds the illegal act disproportionately.
Therefore, the Court, concluded that the life sentence does not
contravene the nature of the penalty, given that it should attend to the
gravity of the illegal conduct in correlation with the social risk and the
need to preserve the legal order.170
Thus, on the basis of these considerations, the Court, determined
that Article 27 of the State of Chihuahua Penal Code makes it evident
that, on the one hand, limits are established for prison sentences and,
on the other hand, that the maximum limit of the prison sentence is
not applicable in the case of voluntary manslaughter to the detriment
of women or minors, or to kidnapping, in which a penalty must be
imposed for each crime committed, even when it exceeds the maximum
prison term. Also, the penalty imposition system, contemplated in the
second paragraph of the legal provision in question, refers to crimes
actually committed, which occurs when the same person commits two
or more independent offenses, each of which represent an offense, to
be heard within the same process, and consequently, the related penalty
is imposed in the same sentence.
In light of the above, the Court, specified that when the crimes of
kidnapping and voluntary manslaughter are committed to the detriment
of women or minors, the delinquent may be deprived of his freedom
for 105 years or more and that, consequently, such situation should be
considered to be equivalent to a life sentence, for it ostensibly exceeds
170
Ruling P. XIX/2006, ib., t. XXIII, February 2006, p. 1178
342
RELEVANT DECISIONS
the life term of a human being. However, it estimated that despite the
material penalty accumulation system referred to in Article 27 of
the State of Chihuahua Penal Code, this may result in the application
of penalties equal to life imprisonment, and the aforementioned
provision does not transgress constitutional Article 22.171
With respect to the last concept of invalidity alleged by the plaintiff
in relation to Article 122 Bis of the State of Chihuahua Code of Criminal
Procedures, establishing detention as a precautionary measure to prevent
a person subject to investigation from evading the action of justice in
relation to a serious offense, the Court, indicated that house arrest
affects personal freedom by requiring a person to remain within
determined premises under the vigilance of the prosecuting and
investigating authorities, impeding him from carrying out any of the
activities that are part of his normal routine. The Court added that
Articles 14, 16, 19, and 20, subsection A, Section III, of the Federal
Constitution, makes evident the principle of due process of law, which
implies that the defendant should have his right of freedom recognized,
and that the State may only deprive him or her of such right whenever
there are sufficient incriminating elements, and legal proceedings are
being instituted against such individual respecting the essential
formalities of the process, and the Judge pronounces a final sentence
declaring the defendant guilty.
Thus, the Court referred to the fact that the Federal Constitution
prescribes strict guidelines to be observed prior to any action by the
authorities that brings as a consequence the deprivation of personal
liberty. Although it is true that in the civil procedural field, the concept
of detention is a precautionary measure decreed by the civil Judge at
the request of a person undertaking legal proceedings against another,
Wich prohibits such individual from leaving his city of residence, for
criminal purposes, detention —as a precautionary measure while
the Prosecuting Authorities investigate the criminal responsibility of the
defendant— in the form and terms established in the provision under
challenge, is legally incompatible with the personal liberty guarantees
established by the Federal Constitution in favor of all citizens.
Therefore, the Court, considered that, under Article 122 Bis of
the State of Chihuahua Code of Criminal Procedures —without fulfilling
171
Ruling P. XX/2006, ib.
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the requirements for the affectation of liberty demanded by the precepts
of the Federal Constitution— the personal freedom of the defendant is
limited.
On the other hand, the Court indicated that Article 11 of the
Federal Constitution makes it evident that the limitations or restrictions
to the liberty of transit merely require the person on which such
limitations are imposed not to abandon his country or city of residence,
as a result of being subject to civil or penal proceedings. Put such
restriction under no circumstances goes to the extent of impeding the
individual from leaving determined premises and, less still, that he
should be under custody and vigilance from the investigating and
prosecuting authorities. For this reason, it specified that the legal
concept of detention is not supported by constitutional Article 11 and
that, on the contrary, it is contravened, given that the detainee is
impeded from leaving given premises and, consequently, the
community or national territory in which he resides, which represents
a violation of the liberty of transit.172
Consequently, the Court, concluded that Article 122 Bis of the
State of Chihuahua Code of Criminal Procedures, whose addition is
included in Decree No. 790/03, issued by the Congress of the State,
violates Ar ticles 11, 16, 18, 19, 20, and 21, of the Federal
Constitution. 173
172
173
Ruling P. XXIII/2006, ib., p. 1171.
Ruling P. XXII/2006, ib., p. 1170.
343
Bonds granted under public work agreements
are enforceable even if the respective means of
objection challenging the validity of the rescission
decreed through noncompliance by the principal
obligor have not been acknowledged, except
when the principal debtor obtains suspension
or when the policy states otherwise, and the law
contemplates a related resolution
Resolution to Opposite Rulings 17/2005-PL. Between the Fourth
Collegiate Civil Courts of the Third Circuit, First Collegiate
Administrative Court, Second Collegiate Administrative Court, and
Seventh Collegiate Administrative Court of the First Circuit, and Sixth,
Ninth, Eleven and Fourteenth Collegiate Administrative Courts and
Fourth Collegiate Civil Courts, all of the First Circuit. September 7,
The Fourth Collegiate Civil Courts of the Third Circuit, First Collegiate
Administrative Court, Second Collegiate Administrative Court, and
Seventh Collegiate Administrative Court, all of the First Circuit, ruled
on the moment in which an obligation guaranteed by a bonding policy,
issued on a public works contract, is considered enforceable. Principally,
they considered that the enforceability of the obligation contracted by
the bonding institution is not subject to the definite resolution of
proceedings, recourses, or means of defense that the party under bond
makes valid to question the non-fulfillment of the main obligation
attributed in the administrative cancellation decreed by the beneficiary
of the bond.
The Fourth Collegiate Civil Court of the Third Circuit analyzed
Article 93 of the Bonding Institutions Law and articles 2226 and 2227
of the Federal Civil Code in relation to the theory of annulment of
legal acts. It concluded that the enforceability requirement on the bond
345
346
RELEVANT DECISIONS
is the non-fulfillment of the obligations of the party under bond,
determined through an administrative cancellation, on a presumption
of validity and which becomes fully effective at the time its nullity is
decreed by judicial authority, at which time the effects of the
administrative act may be retroactive. For its part, the remaining three
courts limited themselves to analyzing the matters agreed in the
respective bonding policies and concluded that, in such policies, there
was no agreement in this sense that enforceability would be dependent
on the issuance of a resolution in the means of defense made valid by
the party under bond, but that the only condition to which enforceability
was subject was the noncompliance by party under bond of the
obligation guaranteed. Thus, there was nothing to impede the bonding
company from being demanded payment of the obligation guaranteed
in the bonding policies in the face of non-fulfillment. Likewise, although
the policies established that they were to remain effective during all
recourses and legal proceedings instituted through to the time of final
decision by the competent authority, this only meant that the obligation
of the bonding company would be prolonged in time even when the
means of defense were made effective.
The bench of the Supreme Court, noted that the transcendent
aspect for the Fourth Collegiate Civil Court of the Third Circuit was
the presumption of validity of the administrative act —administrative
cancellation of the public works contract— as the basis to make the bond
enforceable, while for others, what was important was the agreement
of the wills of the parties. Thus, if the parties expressly agree, the
enforceability of the obligation of the bonding company cannot be subject
to the resolution of means of defense made valid by the party under
bond. Consequently, the latter courts adopted the criterion that, in
cases when this is expressly agreed, the enforceability of the bond can
be subject to the resolution of the means of defense made valid by the
party under bond against the cancellation declaring the non-fulfillment
of the principal.
However, the Fourth Collegiate Civil Court of the Third Circuit,
Second Collegiate Administrative Court, and Seventh Collegiate
Administrative Court, all of the First Circuit, reached the same conclusion.
They agreed on the consideration that the moment the non-fulfillment
of the principal occurs, generating the right to demand bond payment, is
when the administrative authority that is the beneficiary of the bond
issues a cancellation declaration, regardless of whether the ordinary
means of defense have yet to be resolved, and which the principal
may have promoted to question such administrative determination.
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347
That is to say, once the non-fulfillment of the principal obligation has
been declared by means of a cancellation decreed by the public
administration entity, the bond is enforceable even in cases whereby
such non-fulfillment has been questioned and is sub júdice.
As for the Sixth, Ninth, Eleventh, and Fourteenth Collegiate
Administrative Courts, as well as Fourth Collegiate Civil Court, all of
the First Circuit, the Chamber noted that they had analyzed the same
subject and had basically maintained that, in light of the fact that
the bond is a contract of an accessory nature, in cases whereby the
determination of non-fulfillment made by the public administration
entity through a cancellation is questioned by the party under bond,
the obligation contracted by the bonding company through the
bond will be enforceable by the beneficiary only when a final decision
establishes the existence of the non-fulfillment attributed to the party
under bond. This is true regardless of the fact that in the bonding
policy no agreement has been made in the sense that the bond would
be effective until the final resolution of all proceedings, recourses, or
means of defense instituted by the party under bond.
Additionally, the Fourth Collegiate Civil Court of the First Circuit
maintained that the term of expiry of the bond is not an obstacle to
the aforementioned determination, as established in Article 120 of the
Bonding Institutions Law, which establishes that, whenever a bonding
company is bound for an undetermined period of time, it is released
by expiry whenever the beneficiary fails to present a related complaint
in the 180 days following the date of enforceability of the obligation
guaranteed, as a result of the non-fulfillment of the party under bond.
In the opinion of the aforementioned Court, whenever the administrative
cancellation is questioned, it is not possible to consider the non-fulfillment
of the party under bond to exist, up until the time the respective legal
authority effectively declares that such non-fulfillment exists. The 180day term is taken as from the issuance of the final decision declaring
the non-fulfillment of the party under bond, so that, should the bond
not be enforceable, the prescription term cannot be effective either, as
prescribed in the previous precept.
There was thus contradictory rulings of thesis between the criteria
maintained, on the one hand, by the Fourth Collegiate Civil Court of
the Third Circuit, First Collegiate Administrative Court, Second Collegiate
Administrative Court, and Seventh Collegiate Administrative Court, all
of the First Circuit, and on the other hand, by the Sixth, Ninth, Eleventh,
and Fourteenth Collegiate Administrative Courts, and the Fourth Civil
Court of the First Circuit. The point of contradiction lay in determining
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RELEVANT DECISIONS
whether, in the case of bonds granted to guarantee fulfillment of
obligations in public works contracts whereby the cancellation of the
principal contract declared on the basis of the non-fulfillment of
the principal (party under bond) is questioned by the latter through the
respective means of challenge, the enforceability of the bond arises:
a) the moment the public administration entity declares the non-fulfillment
of the party under bond by means of contract cancellation, regardless of
whether this is contested through the pertinent means of defense; or
b) at the time the competent judicial or administrative authority finally
determines the validity of the administrative cancellation by confirming
the existence of the non-fulfillment attributed to the party under bond.
The Court resolved that it would issue a resolution regarding the
opposing rulings. From its perspective, the enforceability of the principal
obligation alluded to in Articles 93 and 95 of the Bonding Institutions
Law as a basis to claim the payment of bonds arises as from the time
the decreed cancellation due to non-fulfillment of the contractor is
established, in conformity with Articles 72, Section II, of the Acquisitions
and Public Works Law, 174 and Article 62, Section II, of the Public
Works and Related Services Law; the only difference being that, in
terms of this Law, the bond is enforceable after the notification of the
cancellation and following previous payment of the respective sum.
Such enforceability does not disappear even if the beneficiary of
the bond has claimed the payment of the amount guaranteed by the
bonding company and the principal obligation is sub júdice, because
the party under bond has made effective some means of defense against
said cancellation and the judicial or administrative authority has yet
to issue a final decision recognizing the validity of the administrative
act, except when agreement is established in the bonding policy in the
sense the enforceability of the bond will be dependent on the fact that
a final decision is issued on the principal obligation in the final means
of defense and that the law allows for an agreement in this aspect. The
Chamber maintained this because, in conformity with Articles 8 and
9, of the Administrative Procedures Law, the act is of an administrative
nature, the duly notified cancellation is efficient and enforceable while
its invalidity is not declared by administrative or judicial authority, as
the case may be. All things considered, it was necessary to take into
consideration that, when the cancellation act is contested and the
challenger obtains the suspension of its execution either by means of
174
Repealed by the second transitory article of the Public Works and Related Services
Law, in that relating to public works, published in the Official Gazette on January 4, 2000.
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an administrative recourse or by contentious proceedings, such measure
will also generally impede the party under bond from complying with
the accessory obligation. Moreover, in case the bond should be
collected, and whenever the rescission is invalidated by a final
resolution, the bonding company that has incurred in a disbursement
payable on the bonding policy will not be left defenseless, given that
the nullity determination is retroactive, in terms of Article 6 of the
aforementioned legal order, and will be entitled to have the amount
paid to the beneficiary entity reimbursed.175
175
Article 403 of the Federal District Civil Procedures
Code relating to the evidentiary value of public
documents does not infringe the right to a
hearing
Direct Amparo under review 1241/2005. September 7, 2005. Opinion
delivered by Justice Juan N. Silva Meza.
The claimants objected to the sentence dictated in case 3323/2004,
derived from the appeal confirming the final lower Court sentence
dictated in ordinary civil lawsuit 746/2003, handed down by the
Eleventh Civil Court of the Federal District. It was alleged that Article
403 of the Code of Civil Procedures for the Federal District (CPCDF)
violated the rights to a hearing and expedite access to justice on the
basis that it did not permit objections or defenses that could serve to
detract validity of the public documents and legal acts therein
contained, thus turning them indestructible, and limiting the criterion
of the Judge to take such facts into consideration.
The First Chamber of the Supreme Court methodically began to
study the Article under challenge in the CPCDF, which reads as
follows:
Article 403. That documentation with full probative value is exempted
from the above provision and will therefore not be negatively affected
by the objections to nullify the claim based on such documentation in
terms of its validity.
In the opinion of the Chamber, upon establishing that the public
documents amount to full proof and that their validity is not jeopardized by
the exceptions maintained to nullify the claim based on such documentation,
351
352
RELEVANT DECISIONS
the provision refers only to the probative value of such instruments in
terms of the certainty of their contents, and not with respect to the legal
validity of the act or the contract contemplated in them. For example, the
formality involving changing the contract into a public deed does not
make the legality of the contract evident, for it may still present a legal error
relating to any other of the requirements necessary for its existence.
Thus, the Chamber considered that the sentence under appeal
should establish that the premise taken as a basis by the claimants was
false; that the law referred to the document itself and not the validity
of its contents, and that its challenge —in its abstemious condition—
can be made through the legal actions contemplated in Articles 333,
345, and 386, of the CPCDF.
Thus, the First Chamber maintained that the legal provision in
question did not violate the hearing guaranty contemplated under
constitutional Article 14, because no prohibition whatsoever is
established for the invalidation of a legal act, as the contents of a
contract in a lawsuit, by means of an action, or an objection, regardless
of the fact that it may have been admitted as a public document. Despite
due formalization of the contract before a notary public, the derived
actions are subject to all the objections or defenses relating to its intrinsic
validity. 176 This is because the public form authenticates the reality
of the concession but not the substantial legality of the respective
agreement. Any contrary consideration would result in the absurdity
of not being able to invalidate a contract merely because it is contained
within a public instrument even if the latter referred to obligations that
are physically impossible to comply with, or to matters that lie outside
the business.
The Chamber observed that, for this reason, there are various
provisions in the Federal District Civil Code (CCDF), which allow for
the nullification of the act or contract established in a public document.
Certain existence and validity requirements under Articles 1794 and
1795, of the CCDF, must be complied with to ensure that the legal acts
are efficacious and not liable to be nullified.
In light of these circumstances, the First Chamber considered it
valid to confirm the sentence under appeal which denied the amparo
and protection of the Federal Courts requested.
176
Ruling 1a. CXLIV/2005, ib., p. 38.
Whenever an act contested consists of the resolution
rendered in the determination of admissibility
proceedings whereby the House of Deputies of
the Congress of the Union decides to withdraw
procedural immunity and remove a public official
from duty, an Administrative District Judge is
required to hear the amparo trial
Resolution to Opposite Rulings 132/2005-SS. Between the Seventh
and Thirteenth Collegiate Administrative Courts of the First Circuit.
The Second Chamber of the Supreme Court was required to examine
whether, as sustained by the Seventh Collegiate Administrative Court
of the First Circuit, the power to arbitrate amparo proceedings indicating
the suspension of rights contained in Article 35, Section I, of the Federal
Constitution, as the contested act, derived from the vote declaring the
possibility of instituting legal proceedings against the Head of the Federal
District Government, and removing him from his post, pertains to the District
Criminal Court given that its authority is derived from the criminal nature
of the act, over and above the nature of the issuing authority. Thus, if
the aforementioned case involves determining whether it is the correct
forum to undertake legal proceedings against a government official
and, if applicable, remove the procedural immunity attributed by the
Federal Constitution in order to place such individual at the disposal
of the penal authority, this represents an act of sovereignty by the
aforementioned legislative body that comes down to a question of
times for the criminal sphere. In addition, in accordance with an
extensive interpretation of Section I of Article 51, of the Federal Judiciary
Law (LOPJF), jurisdiction is also effective whenever a decision can
bring a consequence that affects personal freedom, as in the case of
the aforementioned admissibility of the case, given that it affects the
353
354
RELEVANT DECISIONS
freedom of the Head of the Federal District Government by removing
the obstacle faced by the Prosecuting Authorities to institute legal
proceedings against such government official. On the contrary,
whenever, as affirmed by the Fifteenth Collegiate Administrative Court
of the First Circuit, it is the District Administrative Court that hears the
amparo proceedings, given that the basis to determine jurisdiction in
favor of a District Judge is the legal nature of the acts contested, for if
the objective is for these to derive from the admissibility procedure
whereby the Chamber of Deputies decided to remove the head of the
Federal District Government from his post and deprive him of his
constitutional rights, we are confronted by an act of an administrative
nature. In the aforementioned procedure, the Chamber of Deputies
decides whether to disbar the government official in question or not,
but does not judge on whether a potential criminal liability offense
may be imputed. That is to say, although the investigation elements
based on which the deprivation of constitutional right or others is
requested, the Chamber evaluates whether the officer must at this time
face legal proceedings or not, indicating that this is a political evaluation
undertaken by a body of that same nature, which, although preceded
by a penal antecedent, constitutes an act of sovereignty by the Legislative
Chamber. In addition, the acts contested by the plaintiff consisting
of the suspension of his right to run in popular elections as a result of
being removed from his position as a government officer elected by
vote, are acts that may under no circumstances have criminal
characteristics, given that they are primarily political and pertain to
the organization of the State.
In its final criterion, the Second Chamber maintained that in order to
determine which Court has jurisdiction in these cases, it is necessary
to take into consideration the nature of the action. This is possible
through the study of the benefits claimed, facts narrated, evidence
presented and laws cited to support the proceedings. If the plaintiff
then refers to the contested act in the resolution passed by the Chamber
of Deputies of the Congress of the Union, which, in the statement of
admissibility procedure, decided to terminate a government official
from his post and deprive him of his constitutional rights, it is evident
that this is an administrative act. This is because no judgment is made
as to whether the offense exists or not or with respect to criminal liability, as
well as the fact that upon instructing and resolving the admissibility
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procedure, the Chamber of Deputies acts as an administrative authority
given that, although it analyzes diverse evidence and acts derived
from a preliminary investigation, it does not pronounce on the legal
situation of the officer in question. This is why the assumption of
jurisdiction contemplated in Article 52, Section IV, of the LOPJF,
becomes effective in favor of an Administrative District Judge.177
177
355
The supplementary application of Article 878,
Section VII of the Mexican Labor Law to the State
Workers Law is valid provided that the dispute in
question arises between the parties derived from
a relationship equivalent to a labor relationship
or facts closely linked to such relation
and Ninth Collegiate Labor Courts of Circuit One, September 13, 2005.
In face of the rulings issued by the Second and Ninth Labor Collegiate
Courts of the First Circuit, the Second Chamber of the Supreme Court
observed the existence of contradictory rulings. The Second Collegiate
Labor Court of the First Circuit maintained that the Federal State
Service Workers Law (LFTSE) does not contemplate the action of
counterclaim, meaning that its exercise before the responsible Chamber
of the Board of Arbitration by the plaintiff against the worker is
notoriously inadmissible and that no supplementary condition can be
attributed to the Mexican Labor Law (LFT). That occurs when the
applicable legislation contemplates the matter in dispute, which is not
the case in the case at hand.
For its part, the Ninth Collegiate Labor Court of the First Circuit
determined that, in conformity with Article 123, Subsection A, Sections
XX and XXIV, of the Mexican Political Constitution, Articles 604, 1 and
878, Section VII, of the Mexican Labor Law, applied in supplementary
fashion to the LFTSE, according to its Article 11, the defendant party
in a labor lawsuit may counterclaim against the opposing party during
the complaints and incidental pleas stages. The requirement for the
Chambers of the Board of Arbitration to hear such proceedings
instituted and resolved by such means, is that they should refer to a
357
358
RELEVANT DECISIONS
work conflict between the parties, derived from the work relationship
or from facts intimately linked to such relationship. It also added that,
in accordance with the legal nature of the counterclaim, it is the party
that is the object of the counterclaim that is responsible for preparing
a response, in accordance with the rules prescribed by law relating to
the form to be taken by all actions of this nature; that is to say, an action
that is autonomous and independent with regard to the aforementioned
original lawsuit is made effective, given that the defendant, as well as
the respective defenses applied against accusations instituted against
his person, exercises an action that brings forth a determined benefit
or sentence regardless of the dismissal of the proceedings instituted by
the plaintiff.
Consequently, the point of contradiction involved determining
whether Article 878, Section VII of the LFT, operates in a supplementary
fashion to the LFTSE whenever the defendant presents a counterclaim
in response to the proceedings instituted against him or her.
The ruling issued by the Second Chamber resolved the controversy.
The Court maintained that the counterclaim is a procedural act by means
of which the plaintiff files a separate action that is independent or
related to the substance of the claim and is aimed at ensuring that
both are substantiated and decided simultaneously within the labor
process. For purposes of the admissibility of the supplementary
application of the law, it is not indispensable for the regulation
permitting such supplementary application to govern the institution to
be substituted. It suffices for the latter to be necessary to attain
efficaciousness of the provisions contained in the law substituted, it
being only valid to resort to such legal concept whenever there is a
legislative void or vacuum, and not in face of the silence of the law
with respect to the situation. Thus the Chamber concluded that the
supplementary application of Article 878, Section VII, of the LFT, to
the LFTSE, is valid provided that it refers to a conflict arisen between the
parties, derived from a relation similar to a labor relationship or from
events closely linked to such relationship, for such counterclaim serves
to complement a relevant aspect of the process inherent to the procedural
equality of the parties, which adheres to the principle of procedural economy
and prompt administration of justice. 178
178
Ruling 2a./J. 124/2005, ib., p. 932.
Students in the course to enter the office of the
Federal Prosecuting Authorities have standing
to contest their retirement or separation
through an amparo
and Seventh Collegiate Administrative Courts of the First Circuit.
The Second and Seventh Collegiate Administrative Courts of the First
Circuit analyzed an essentially equal legal situation; that is to say,
whether the students in the course to enter the Law Enforcement
Agency have standing to seek an amparo against the resolution that
determines their retirement or separation from such agency. The
aforementioned Collegiate Courts reached dissimilar conclusions, for the
Second Collegiate Court determined that the students in the course to
become Officers of the Law Enforcement Agency do not have standing
to seek an amparo against the resolution that dictates their retirement
from such course, given that the fact that they are candidates to enter
such profession means that they only have the expectations established
under the law and not a legally protected right. For its part, the Seventh
Collegiate Administrative Court of the First Circuit determined that
the cause made effective by the defendants in the guarantees lawsuit,
was groundless, as provided for in Section V of Article 73, of the Amparo
Law (LA), consisting of a lack of standing given that, by being a student
enrolled in the Initial Training as a Law Enforcement Agent Course,
the plaintiff has the interest necessary to institute amparo proceedings.
The contradictory rulings was resolved by the Second Chamber
of the Supreme Court. It indicated that, in principle, according to Article
107, Section I, of the Federal Constitution, relating to numerals 4 and
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360
RELEVANT DECISIONS
73, Section V, of the Amparo Law, the admissibility of the amparo is
inextricably dependent on the appellant being a holder of the right
allegedly jeopardized through the act of the authority under challenge,
and that such act should be directly detrimental to his legal sphere.
However, the Chamber indicated that for the legal interest to be
accredited, it does not suffice for the party seeking amparo to be a
holder of the right deemed violated through the act contested but,
rather, it is also necessary for such act to directly affect his legal sphere.
With regard to the legal interest, the Second Chamber indicated
what is known as subjective law in the legal doctrine involving the
authority to demand and a correlative obligation translated into legal
duty to comply with such demand, while the expectation of law must be
understood as a claim seeking the realization of a concrete legal situation
in conformity with the legislation in effect in a determined moment.
The Chamber ruled that in order for the right to enter the
profession of Law Enforcement Agency Officer, it is necessary to comply
with the obligations or requirements established for such purpose in
the applicable legal regulations, including the accrediting of initial
training and objection proceedings. For this reason, entry into the
aforementioned profession is an expectation of law for it is dependant
on the fulfillment of obligations and requirements established for such
purposes. However, in the case at hand, the retirement or separation
from the course to enter the profession of Law Enforcement Agency
Officer had been challenged, which made it necessary to establish if
there is a legitimately protected right for the students to remain in the
course.
In this regard, the Chamber affirmed that the applicable legal
provisions that governed the cases resolved by the two Collegiate
Courts, require the students accepted on the initial training course to
comply with the requirements, evaluations and procedures established
for such purposes under the respective summons, meaning that the
fulfillment of such requirements implies the right of the students to
remain in the course. The fact that a person has not entered the Law
Enforcement Agency cannot be taken to mean that his or her right to
challenge the results of the course to achieve such admission in
someway limits or jeopardizes his right. The law concedes the right to
demand fulfillment of the regulating provisions by contesting the results
of the examinations and related statements through the relevant
channels.
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The Chamber concluded that the students aspiring to be come
officers of the Law Enforcement Agency have a legal interest to
challenge by means of an amparo the declaration of retirement or
separation from the course in order to achieve such admission, despite
the fact that such declaration can bring about the loss of the right to
enter the aforementioned institution. By complying with the established
requirements for acceptance into the respective course, as well as those
relating to its development, they become of the right to remain in it
through to its conclusion. The applicable legal provisions concede the
prerogative of contesting the results of the related examinations by
instituting the recourses provided for such purposes which, if well
grounded, would facilitate their permanence in the respective course.
Thus, the statement of retirement or separation of students
accepted in the course to become officers of the Law Enforcement
Agency generates direct prejudice to those who consider themselves
to have complied with the requirements demanded to take such course
and those relating to its development.179
179
Ruling 2a../J. 125/2005, ib., p. 781.
361
The Supreme Court validates the creation of the
Municipality of San Rafael in the State of
Veracruz
Constitutional dispute 11/2004. Municipality of Martínez de la Torre,
State of Veracruz. September 20, 2005. Opinion delivered by Justice
José Ramón Cossío Díaz (in whose absence, the project was taken
over by Justice Margarita Beatriz Luna Ramos).
The plaintiff Municipality indicated that Decree 598, dated December
15, 2003, creating Municipio Libre de San Rafael, and Section XI of
Article 33 of the Constitution of Veracruz, violeded Articles 41, 115,
116, and 133 of the Federal Constitution. In its opinion, Article 115 allows
the Legislatures, through the agreement of two thirds of its members,
to suspend City Councils, declare their disappearance, or suspend or
revoke the mandate of some of its members, but does not permit the
creation of Municipalities. This power is also denied under Article 116,
which determines the internal regime of the States, meaning that that,
by issuing the challenged decree, the Legislature exceeded its authority,
in transgression of Articles 41 and 133 of the Federal Constitution, and
jeopardizing the principle of municipal autonomy contemplated by
In this respect, the bench of the Supreme Court, indicated that
constitutional Articles 115 and 116 consider the Free Municipality to
be a basic structural piece within the public powers layout of the
Republic. However, this does not require that the number of
Municipalities be invariably maintained nor does it explicitly appoint
an authority as the competent body to modify the current municipal
map. This last matter must be resolved in accordance with the
constitutional provisions governing the distribution of powers between
363
364
RELEVANT DECISIONS
the different levels of government. From that perspective, the Court
maintained that the power to create Municipalities belongs to the
states.180 Thus Decree 598 mentioned above cannot be considered
invalid due to the lack of authority of the issuing body.
The plaintiff also mentioned the violations to Articles 14, 16, 39,
40, 41, 115, and 133 of the Federal Constitution, in relation to numeral
33, Section XI, subparagraph b), of the Constitution of Veracruz, and
Articles 5 and 6 of the Free Municipality Law of that State. Article 5 of
the Free Municipality Law establishes the requirements to create a
new Municipality: a) the State Congress must decide on the creation
of a new Municipality through the vote of two thirds of its members;
b) before making a decision, it is required to listen to the State governor
and the interested City Council or City Councils; c) the interested City
Council or City Councils must give their opinion through the vote of
two thirds of their members, and d) before giving this opinion, the
interested City Council or Councils must listen to the municipal agents
and subagents, as well as to the heads of block.
From the documentation in the file, the Court observed that all
requirements had been fulfilled. It immediately tackled the relation
between the supposed violation of such requirements with the hearing
guarantee which, according to the plaintiff Municipality, had been
violated for the Legislature had allegedly not taken into consideration
the opinion of the municipal agents and subagents, heads of block,
and the City Council. The Court considered this argument groundless
because, although the jurisprudence relating to the hearing guarantee
has been basically developed with respect to the situation of individuals
affected by acts of the judicial or administrative authorities, it is clear
that it projects its effects over the process of creation of a new
Municipality. This is the case because the latter, in such context, finds
itself in a legal situation where it does not act with authority, properly
speaking. Thus, the hearing guarantee imposes the following
requirements for the competent authorities to process and approve
the creation of a new Municipality: a) to inform the respective City
Councils of the existence of a procedure whose culmination may affect
their interests; b) to pass on questions to be tackled or debated; c) to
provide the opportunity to formulate related opinions and present proof
180
Ruling P./J. 151/2005, ib., December 2005, p. 2298.
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supporting affirmations; and d) to issue a final resolution whereby the
matters put forward by the parties are attended to.181
The Court added that the records showed that the hearing
guarantee had been respected by the plaintiff Municipality and
immediately referred to the requirements established in Article 6 of
the State of Veracruz Municipality Law, in order to determine whether
the guarantees of legality and legal certainty had been violated. The
Court observed that the report presented to the Congress of Veracruz,
by the Permanent Joint Commissions of the Interior, Inter-municipal
Territorial Limits, and Municipal Development and Promotion, confirmed
that evaluations had been carried out which took into consideration
all the elements deemed necessary by Article 6 of the Free Municipality
Law to create a new Municipality (population, urban infrastructure,
territorial reserves, and economic potential), and that the related
conclusions had been supported by objective elements.
The Supreme Court concluded that the decree creating the Free
Municipality of the State of Veracruz, does not disregard the constitutional
guarantees of legality and legal certainty demanding that the authorities
make an exact application of the law.
The opinion that the challenged decree lacked legal grounds and
motivation was also deemed groundless. The Court, recalled that it
had been traditionally held that such guarantees, in the case of acts
that do not transcend directly on individuals but are exclusively verified
in internal government spheres, are satisfied by means of the existence
of a legal norm granting the authority the power to act in a determined
sense, through the deployment of its action in the form prescribed
under the law. However, it clarified that the act of creation of a
Municipality cannot be assimilated equally to an act exclusively verified
in the internal spheres of government, for, although the act is not
directed at individuals, it has an institutional and legal importance
that is superior to an act of inter-government relation. This is because,
by means of the creating decree an entity is generated which is inserted
within the preexisting constitutional and legal framework. On the other
hand, such process affects the inhabitants, who are partially redefined
as political subjects and hereinafter are required to adhere to partially
new norms and authorities. Moreover, the socioeconomic, institutional,
political, and cultural importance of the act of creation of a new
181
Ruling P./J. 152/2005, ib., p. 2298.
365
366
RELEVANT DECISIONS
Municipality, demands that the Legislature demonstrate that the legal
process leading to its creation is derived from a careful evaluation of
the constitutionally and legally established elements as requirements
necessary for purposes of admissibility. Thus, the existence of a
substantive and not merely formal consideration of the applicable norm
by the decision-making public authorities, respects the guarantee of
motivation in the reinforced sense, required in the issuance of determined
acts and norms, including those relating to the creation of a new
Municipality.182
In short, the Court emphasized that there was no violation of
Articles 5 and 6, of the State of Veracruz Free Municipality Law
indirectly leading to a disregard of Articles 14 and 16, and added that
no violation whatsoever could be said to exist to Articles 39, 40, and
41 of the Federal Constitution, referring to national sovereignty, the
division of powers, and the form of government of the Mexican State;
in relation to the municipal autonomy protected under Article 115; to
the obligation of any public official to observe the laws of the country
—derived from Article 128— or with regard to the sources of law system
established in Article 133 of the Federal Constitution.
182
Ruling P./J. 153/2005, ib., p. 2299.
In amparo proceedings against laws,
reinstatement of the proceedings must be
ordered in the event of a failure to summon
one of the Chambers of the Congress of the
Union, even if a decision has been laid down
by the Supreme Court on the unconstitutionality
of the alleged norm
Collegiate Court of the Fifteenth Circuit and the Fourth Collegiate
Court of the Eight Circuit. September 22, 2005. Opinion delivered
by Justice Juan Díaz Romero.
The point of contradiction lay in deciding whether, in the event that
the District Judge fails to summon one of the Chambers of the Congress
of the Union responsible for issuing the legal norm contested in the
amparo proceedings with respect to which the Supreme Court had
ruled in the sense that such norm is unconstitutional, the Circuit
Collegiate Court that hears the appeal for review against the sentence
dictated by the former must replace the procedure in the lawsuit, based
on Article 91, Section IV, of the Amparo Law [Ley de Amparo (LA)],
or whether such replacement results unnecessary given that a ruling
already exists declaring the contested law unconstitutional.
The bench of the Supreme Court, established that the analysis of
Article 91, Section IV, of the LA, makes it evident that the authorities
competent to hear the appeal for review are empowered to order the
replacement of the process under various circumstances. This includes
those cases where it appears that the District Judge, the Unitary Circuit
Court, or the prosecuting authorities hearing the case, have violated
the fundamental rules governing the amparo, for the law contemplated
that the sentence cannot be considered valid whenever the process is
lacking any performance legally required of any of the aforementioned
courts.
367
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RELEVANT DECISIONS
The Supreme Court, emphasized that the fundamental amparo
rules are to be observed by the related specialized bodies through the
express or implicit provision of the various laws regulating such
proceedings in order to correctly integrate the process depending on
the nature of the act contested or with the person requesting
constitutional protection. In other words, it is the totality of obligations
systematized in the normative bodies governing amparos that distinguish
the procedural burdens imposed on the parties for the former are
unofficial while the latter require the intervention of the parties to make
effective the prerogatives established under such laws.
In order to determine the competent organ to analyze whether
these fundamental rules have been fulfilled, the Supreme Court,
affirmed that it is necessary to go by the acts contested in the guarantees
proceedings. The reason being that whenever general norms are
challenged, the Supreme Court is the organ to hear the appeals for
review instituted against the sentences pronounced in amparo by the
District Judges, in terms of Article 107, Section VIII, subparagraph a), of
the Federal Constitution; Article 84, Section I, subparagraph a), of the
LA, and Article 10, Section II, subparagraph a), of the Federal Judiciary
Law (LOPJF), and also for arbitrating possible procedural irregularities
committed. Basically, the Collegiate Circuit Courts may also unofficially
examine the fundamental rules governing amparo proceedings
whenever, in accordance with General Plenary Agreement 5/2001,
they have delegated authority to resolve reviews instituted against a
sentence dictated in a constitutional hearing where a general provision
is in dispute.
The Supreme Court maintained that the contending Collegiate
Courts in this dispute, in use of the delegated, jurisdiction, agreed
that, in accordance with Articles 2, 5, Section III; Articles 11, 116,
Section III; 147, and 149, of the LA, the judge hearing the case is required
to summon the aforementioned authorities as responsible parties for
them to justify or defend the constitutionality of the act attributed
to them —that is, the Chamber of Senators, in the case at hand.
The Court considered it obvious that the District Judge must
summon both Chambers of the Congress of the Union when a federal
norm is challenged in whose issuance such chambers were involved,
both for juridical defense purposes and to expose possible causes for
inadmissibility or dismissal of the suit due to procedural inactivity, etc.
Thus, it is not possible to disregard such summons for the guarantees
proceedings could not be validly integrated, and whose replacement
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only becomes unnecessary when, in use of the authority delegated in
the Collegiate Circuit Court, it is evident that it is admissible to dismiss or
discontinue the case for rectification purposes.
The Court added that the above is in no way compromised by
the fact that rulings of the Supreme Court should exist pointing to its
unconstitutionality. That particularity does not invariably result in
the concession of amparo, given that the omission to summon one of the
Chambers of the Congress cannot be validated by that mere fact for
there is no restoration of retribution of the rights that could be enforced
against the admission of the above suit, or in relation to the inadmissibility
of the proceedings or the defects in capacity of the plaintiff not observed
by the judge in order to decree this unofficially, although he was able
to detect the responsible authority through the natural interest that
serves to defend the constitutionality of the norm under dispute.
Furthermore, the right to file for a review would be impeded as a result
of not intervening during the proceedings, in order to expose any undue
application of Court rulings , or to insist on the same or on new causes
for dismissal or to expose different reasons to deem the respective
norm constitutional.
The Supreme Court concluded that the replacement of the amparo
proceedings in order for the legislative authority to be summoned, can
transcend into a change in the sense of the final decision, meaning that
the existence of rulings issued by the Court on the unconstitutionality
of the norm contested does not invariably lead to the consequence of
granting the plaintiff the protection of the Federal Courts. 183
183
Ruling P./J. 126/2005, ib., October 2005, p. 5.
369
The processing of the clarification of a decision
does not impede the institution of amparo
proceedings against a final decision, even when
such a decision is still pending
Collegiate Civil Court of the Third Circuit and the Second Collegiate
Civil Court of the Sixth Circuit. September 26, 2005. Opinion delivered
by Justice Olga Sánchez Cordero de García Villegas.
The matter in this resolution to opposite rulings involved determining
whether amparo proceedings against a sentence dictated in an ordinary
lawsuit are valid while the clarification of such sentence has yet to be
resolved. The bench of the Supreme Court, recalled having maintained
that the clarification of a sentence is a procedural institution whose
aim is to render understandable certain ambiguous concepts, rectify
contradictory concepts, and explain unclear concepts, as well as
rectifying omissions and correcting errors or defects, and whose
employment is necessary to comply with the obligations established
under Article 17 of the Mexican Constitution, which contemplates the
rights of persons to receive prompt, complete, and impar tial
administration of justice. These are attributes that are not achieved by
sentences whose lack of clarification lead to the inclusion of unclear
or contradictory wording or concepts.
The contending Collegiate Courts had analyzed certain Articles
of the Codes of Civil Procedures of the States of Jalisco and Puebla,
as well as the Federal Tax Code, bringing to light three elements:
a) the existence of the clarification of sentence institution; b) that the
related resolution dictated is part of the sentence; and c) that its
implementation interrupts the term permitted for appeal purposes.
371
372
RELEVANT DECISIONS
The Court observed that the clarification of a sentence is a
procedural institution established under the law for the benefit of
citizens. Whenever a sentence is dictated, it may contain an error liable
to be corrected by clarification, and the resolution dictated is part of
that. Moreover, the aforementioned clarification is not considered an
appeal because it cannot modify, revoke, or nullify the sentence,
meaning that it does not affect the finality of such sentence. Thus, in
such cases, the amparo must be instituted independently of sentence
notification.
Therefore, the Court indicated that, whenever a clarification
sentence is sought, the presentation of the guarantees suit prior to any
pronouncement on the sentence does not validate the cause for
inadmissibility contemplated in Section XVIII of Article 73, in relation
to numerals 44, 46, and 158, of the Amparo Law.184 These precepts
indicate that amparo proceedings are admissible against definite or
final sentences or awards or resolutions that bring the case to an end,
on the understanding that final sentences are taken to mean those
dictated in a trial Court in civil juridical matters, whenever the interested
parties have expressly waived the institution of ordinary admissible
appeals, whenever common laws permit such waiver. In terms of the
effects of Article 44, the resolutions that bring a case to an end will be
taken to be those that, without resolving the core of the suit, mark its
conclusion and with respect to which common laws do not grant any
ordinary recourse that may eventually result in their modification or
revocal.
Thus, the Court insisted that the clarification of a sentence is not
an appeal, which is why its motion does not impede amparo proceedings
from being instituted against a final sentence, once the related notification
has been given. The opposite ruling, added the Court, would, on the one
hand, be detrimental in the sense that an amparo would be considered
inadmissible although, in accordance with the precepts of the specific
legislation, such amparo is admissible and, on the other hand, would
bring on the consequence of placing in the hands of those held liable
the term established to institute the proceedings.
184
Ruling P./J. 149/2005, ib., December 2005, p. 5.
All documents and reports obtained from the
National Banking and Securities Commission as
part of a prior home inspection visit procedure
deemed invalid may be presented by the tax
authorities in future proceedings provided that
all related facts or omissions involving a breach
of tax provisions have been captured in detail in
the respective partial records
Resolution to Opposite Rulings 110/2005-SS. Between the First and
Third Collegiate Courts of the Sixteenth Circuit. September 30, 2005.
The opposite rulings involved establishing whether the documentation
and reports obtained from the National Banking and Securities
Commission [Comisión Nacional Bancaria y de Valores (CNBV)] in a
prior visit proceeding declared invalid, can support a settlement
decision within a second visit procedure, and whether, for such
purposes, it is necessary for the facts and omissions from which the
requirement of such information was derived, to be listed in partial or
complementary documentation referred to under Article 46 of the
Federal Tax Code (CFF).
The Second Chamber of the Court indicated that from Article 46
of the Federal Tax Code, it may be concluded that, in principle, in the
course of a home visit the legislator established the need for the tax
authorities to comply with various requirements in order to grant greater
legal security to taxpayers, including, on the one hand, the obligation
of the authorities to certify in circumstantial form, the facts, omissions,
or concrete circumstances observed by the visitors during the home
visit, and that might potentially involve non-fulfillment of tax provisions,
and, on the other hand, the opportunity for the taxpayer to discredit
such acts or omissions, by means of the presentation of documents,
books, or respective records, or alternatively, to opt to correct his or
her tax situation. Also evident is the establishment of a consequence
373
374
RELEVANT DECISIONS
in the event that the taxpayer should fail to present the aforementioned
documents, books, or registrations until the closing of the related document,
taken to mean that the facts established in the respective documentation
are taken as agreed.
The Chamber added that, for purposes of Article 46, Section I,
of the Federal Tax Code, also applicable in terms of its Section IV, the
registration of an act involves detailing the data in books, files, and
other documentation comprising accounting records, as well as in
records, tapes, or any other data processing means in the power of the
taxpayer, or of objects and merchandise found at the address along
with information provided, as well as that derived from third parties,
or other authorities facilitating the possible identification of each fact or
omission uncovered by the auditors in the course of the visit, and that,
having been registered in the respective documentations, lead to the
conclusion that there was a non-fulfillment of tax provisions. Moreover,
in relation to the opportunity for the taxpayer visited to discredit such
facts or omissions, it is necessary to refer to the exposition of motives
in the project of the Federal Executive with regard to the proposal of
the CFF, dated December 15, 1981, and to the report of the Chamber
of Deputies, dated 26 th of the same month and year, as well as to the
report of the respective commission of the Chamber of Deputies dated
December 7 and 13, 1989, which make it evident that the possibility
is established for the taxpayer visited to discredit the facts and omissions
recorded in the partial or complementary documentation as another
requirement for the correct performance of the home visit, with a view
to accrediting the impreciseness or inexistence of such factors, or once
veracity or existence has been corroborated, to be able to correct his
or her related tax situation.
In accordance with the ruling of the Second Chamber, in order to
comply with the above, it is necessary for the visitors to record in the
respective documentation the facts or omissions which came to their
attention in the course of the visit and, in the case of those involving
non-fulfillment of tax provisions and those that come to light by means
of other authorities or third parties, it is also necessary for them to be
included in the partial documentation.
The Chamber affirmed that the fact that the taxpayer is in a
position to discredit that established in the respective documentation,
is logical if related to the consequence implied by the failure to present
such documentation, books, or records, or the failure to indicate
where such material can be found, taking the facts established in such
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documentation as agreed. From the above, it results necessary that
the partial or complementary documentation be used by the inspectors
to record the facts or omissions detected during the home visit, including
information derived from the National Banking and Securities
Commission at the request of the auditing authorities, derived from
any negative response from the taxpayers with respect to the existence
of bank accounts in their name, in which case such circumstance must
be registered in the last partial document, permitting the taxpayer to
discredit such facts or omissions in a term of 20 days.
The Chamber thus added that the statement of disqualification
of all the proceedings implies rendering ineffective the acts performed
by the authority as from the time the violation was perpetrated and
that the procedure be repeated in conformity with the requirements
established in Article 46 of the CFF governing home visits and,
furthermore, that by express provision of the numeral cited, the
taxpayer visited be granted the opportunity to discredit the facts and
omissions detected by the inspectors.
Furthermore, in relation to Article 63 of the CFF, which makes
evident the possibility that the Ministry of Finance and Public Credit
(SHCP), as well as any other competent authority or organism in the
field of federal taxes, should base its decisions on facts known through
the exercise of its inspection authority, or that are included in the files
or documents in the possession of the tax authorities, the Chamber
deemed it necessary to establish the basis on which the tax authorities
can make such a requirement, as well as the nature of the document
issued by the National Banking and Securities Commission (CNBV).
In this sense, the Second Chamber observed that, although Article
32-B of the Federal Tax Code results applicable in the case at hand,
the same cannot be said of Section II of Article 42, for it is aimed at
determining the authority held by the tax authorities therein established,
but in relation to the taxpayers, the jointly liable parties, or the related
third parties, on the premise that the CNBV cannot be considered a
related third party of the taxpayer. In this sense, it cannot be affirmed
that Section II of Article 42 of the Federal Tax Code should be the
basis for the tax inspection authority to demand that the CNBV provide
the information in question, but Section VII of the same precept.
In light of the above, the report of the CNBV, derived from the requirement
of the tax authorities to know the bank accounts in the name of the
taxpayers visited, is a public document.
376
RELEVANT DECISIONS
In relation to the application of Article 63 of the Federal Tax Code,
the Second Chamber indicated that such precept makes evident the
possibility that the Ministry of Finance and Public Credit (SHCP), as
well as any other competent authority or organism in the field of federal
taxes, may base its decisions on the facts that have come to light through
the exercise of its inspection powers, or that are included in the files or
documents in the possession or held by the tax authorities. According
to the aforementioned numeral, the facts known through the exercise
of inspection powers or recorded in the files or documents held or in
the possession of the tax authorities, can serve to conserve as a basis
for the resolutions of the Ministry of Finance and Public Credit (SHCP)
or of any competent federal tax authority, which must be interpreted
in the sense that the mere fact that such information is included in a
file or document at the disposal of the tax authorities should be sufficient
for such purposes.
The Chamber specified that the consequence of a proceeding
ineligible is not tantamount to invalidating the document obtained
by the CNBV, for it is the actions that are annulled. This is also because
the contents were not questioned and the document is a public
document issued by the competent authorities. Thus, the Chamber
concluded that the fact that the home visit procedure is declared
ineligible does not deprive the authority from listing the facts that come
to its attention by means of the aforementioned document in the
resolutions issued in subsequent procedures, which implies that
there is no obligation for the tax authorities to require the information
requested once again. Also rejected was the motion that, because such
document and information are in the form of a file created by means
of a procedure subsequently declared invalid, such document may
not be used in a second proceeding for, in this sense, such
disqualification does not imply the inexistence of the aforementioned
file, but only refers to the fact that the information captured in such
document is rendered ineffective.
The Chamber added that, when the tax authorities become aware
of facts that are included in public documents issued by the CNBV, by
means of which information is provided with regard to the bank
accounts in the names of the taxpayers subject to the home visit, in
files held or in their possession, obtained by means of a first home
visit procedure declared void as a result of formal violations, the
documents may serve to motivate the resolution issued in the second
proceeding, in terms of Article 63 of the Federal Tax Code, provided that
such facts or omissions with regard to which the respective information
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was requested or which is derived from such source, and that implies
the non-fulfillment of tax provisions, have been recorded in the
respective partial documentation, making a related listing in the latest
partial documentation and allowing the taxpayer to discredit the
aforementioned facts or omissions in a term of 20 days as from the date
of the latest documentation and the final documentation of the visit. 185
185
The extinction term provided contemplated in
Article 78, Section II, of the Government Workers’
Liability Law is not interrupted whenever
the acts that give rise to the proceedings and
respective summons are declared null, given
the existence of formal vices
Collegiate Administrative Court of the First Circuit and the
Second Collegiate Court of the Fourteenth Circuit (currently, Second
Collegiate Administrative and Civil Court of the aforementioned
Circuit). September 30, 2005. Opinion delivered by Justice Guillermo
I. Ortiz Mayagoitia.
The contradictory rulings reported involved determining whether the
term of prescription referred to in Article 78, Section II, of the Federal
Government Workers Responsibilities Law (LFRSP),186 is interrupted
or not whenever the act in question, consisting of the initiation of
administrative liability proceedings as contemplated in Article 64,
Section I, of such regulations, is disqualified due to the existence of
formal errors.
The Second Chamber of the Supreme Court resolved that, in
conformity with its criterion established in ruling 2a./J. 203/2004,187
the term of prescription of the sanctioning power of the authorities is
interrupted by the initiation of the administrative proceedings
contemplated under Article 64 of the aforementioned regulation, by
means of a summons for the related government worker to attend an
obligatory hearing, this being the act that generates certainty in the
development of the aforementioned proceeding. Still, whenever such
186
Partially abrogated by the Ley Federal de Responsabilidades Administrativas de
los Servidores Públicos, which appeared in the Official Gazette of March 2002.
187
Semanario Judicial de la Federación y su Gaceta, Novena Época, t. XXI, January
2005, p. 596.
379
380
RELEVANT DECISIONS
act is declared null and void in face of the existence of formal errors,
the consequences derived with respect to the term of prescription
disappear while the initial resolution and summons to a hearing would
also disappear for legal purposes as if it had never existed. Any contrary
assumption would involve excepting the sanctioning authorities from
subjecting themselves to the norms regulating their performance, which
clearly contravenes the governing principle of legality. On such basis,
it was concluded that it is evident that the consequences of nullifying
the initial act of the sanctioning procedure must be assumed by the
authorities given that they are responsible for transgressing the legal
framework governing their performance, and not the government
worker under investigation who challenged such act and obtained a
favorable outcome. Therefore, although it is true that the defective
initial administrative procedure discloses the intention of the authorities
to exercise their sanctioning power, it is also true that by being declared
null and void, it does not have any legal effect whatsoever and,
therefore, for the interruption of the term of prescription mentioned
under Article 78, Section II, of the LFRSP, it is necessary to consider
the new summons made for the government worker to attend the
related legal hearing. 188
188
OCTOBER
2005
Legislative omissions
Constitutional dispute 14/2005. Centro del Estado de Tabasco
Municipality. October 3, 2005. Opinion delivered by Justice José
Ramón Cossío Díaz.
In its constitutional dispute filing, the plaintiff Municipality sought
to invalidate the omission of the local Congress in failing to resolve the
initiative to update the grounds and buildings unitary value tables
that serve as a basis for related taxes collection, presented by the
same Municipality; for failing to pronounce itself and resolve the initiative
which brought on a request for authorization to contract loans; as
well as Article 1, section I, of the Municipio de Centro, Tabasco, 2005
Income Law since, by ratifying this law, the local Congress had
unjustifiably determined to decrease the income estimated in the
initiative presented by the plaintiff Municipality for property tax
payment.
Firstly, the bench of the Supreme Court ruled on the characteristics
of the principle of functional division of powers. In this sense, it
indicated that the aforementioned principle is developed constitutionally
through the attribution of express responsibilities to the higher agencies
of the State. Moreover, the field of action of the authorities is limited
so as to prohibit any activity not expressly authorized. Only actions
provided for under the legal system and, particularly, on the basis of
that established by the Mexican Constitution, may be undertaken. This
system of responsibilities may come in different guises given the fact
that there are express prohibitions that work as exceptions or modalities
381
382
RELEVANT DECISIONS
affecting the exercise of other responsibilities granted; discretional of
exercise authorities or powers, whereby the state agency may decide
whether to exercise the authority conferred or not; and obligatory
responsibilities or powers whereby the state agency Constitution granted
such powers is required to duly exercise them. 189
The Court, explained that the discretional powers or responsibilities
imply that the agencies have the option to decide whether or not to
exercise such authority, as well as the time they choose to do so. Thus,
in a strict sense, such authority entails the mere possibility established in
the legal system of creating, modifying, or eliminating general norms;
that is to say, the legislative agencies have the power to freely decide
whether to create a determined legal norm and when to do so.
Moreover, obligatory powers are those to which the legal order adds
the exercise of an express mandate; that is, an obligation for the
legislative agencies to act in order to ensure correct undertaking of its
responsibilities. It thus follows that any omission, any act of
noncompliance is punishable by way of a sanction. With regard to this
type of power: the legislative organ does not have the option to decide
whether it is to create or issue a determined general norm, rather, it is
responsible (via mandate or obligation) and it must issue or create,
and which may be expressly or implicitly presented in the very text of
the constitutional norms or in its transitory provisions. 190
The Court determined that whenever the state legislative agencies
acquire the aforementioned powers, they may incur in various
types of omissions. On the one hand, there may be an absolute omission
whenever such agencies simply do not exercise their authority to create
laws or have not issued norms supporting their intention to do so.
A relative omission may occur whenever such powers are only partially
or incompletely exercised, impeding the correct and efficient
undertaking of the law creating responsibility. Combining obligatory
and discretional authority with absolute and relative omissions can
bring on various legislative omissions: a) absolute omission of obligatory
responsibilities, whenever the legislative agency has the obligation or
mandate to issue a determined law and fails to do so; b) relative
omissions in obligatory competencies, whenever the legislative agency
issues a law when required to do so by mandate but does so incompletely
or deficiently; c) absolute discretional omissions whereby the legislative
189
Época, v. XXIII, February 2006, p. 1533.
190
Ruling P./J. 10/2006, ib., p. 1528
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organ decides not to act because there is no mandate or obligation
requiring such action; and d) related discretional responsibility
omissions whereby the legislative agency decides to make use of its
discretional power to legislate but the law is issued incompletely or
deficiently.191
Finally, the Court concluded that the authority granted to the
State Legislatures under transitory Article 5 of the Decree reforming
and adding to Article 115 of the Mexican Constitution published in the
Federal Official Gazette on December 23, 1999, and aimed at ensuring
that in coordination with, and under the proposal of the Municipalities,
the necessary measures be adopted to update the unitary ground
values that serve as a basis for property tax collection before the beginning
of the 2002 fiscal year, represents an authority whose exercise is
obligatory since it is derived from the express mandate issued by the
agency responsible for reforming the Federal Constitution. In this sense,
any omission on behalf of a local Congress in pronouncing itself with
regard to a related proposal represents a violation of the aforementioned
fifth transitory article and of constitutional Article 115, for such absolute
omission impedes the full effect of the provisions contained in the
Federal Constitution.192
As for the effects of the decision, the Court ruled that the Congress
of the State of Tabasco should, within the second six-month period of
sessions for 2005, pronounce objectively and congruently, and with
due motivation and reasoning on the proposed initiative to update the
grounds and buildings unitary value tables that serve as a basis for
the collection of the respective taxes, as demanded by the plaintiff
Municipality in order to comply with the mandate established under
Article 115, section IV, subparagraph a), and Second to last paragraph
of the Federal Constitution, and in the fifth transitory article of the
Decree published in the Federal Official Gazette dated December 23,
1999. Thus the aforementioned Article 115 was reformed and extended.
191
192
Ruling P./J. 11/2006, ib., p. 1527.
Ruling P./J. 12/2006, ib., p. 1532.
Article 202 of the Mexican Corporations Act
empowering a Judge to suspend the execution
of decisions under dispute does not infringe
the right to hearing
Amparo under review 1115/2005. October 5, 2005. Opinion delivered
by Justice José de Jesús Gudiño Pelayo.
In the case at hand, Article 202 of the Mexican Corporations Act [Ley
General de Sociedades Mercantiles (LGSM)] was studied, which
establishes that:
Article 202. The execution of resolutions challenged may be suspended
by the Judge, whenever the plaintiffs are covered by sufficient bonding
to respond to any damages potentially caused to society through the
non-performance of such resolutions, in case the sentence declares
the objection groundless.
The First Chamber of the Supreme Court determined that this
legal provision, as well as numeral 201,193 of the LGSM, make it evident
that the resolutions of the Stockholders’ Meetings may be challenged
193
Article 201. Stockholders representing thirty-three percent of the capital stock
may judicially object to the resolutions made by the Regular Meetings, provided the
following requirements are fulfilled:
I. That the proceedings are instituted in the fifteen days following the closing of the
Meeting;
II. That the appellants have not concurred to the Meeting or have voted against
such resolution,
III. That the proceedings indicate the clause of the social contract or legal precept
infringed and the concept of violation.
No judicial objection may be undertaken against resolutions relating to the responsibility
of the Administrators or Statutory Auditores.
385
386
RELEVANT DECISIONS
by the stockholders of the company who account for at least 33% of
the capital stock and that such resolutions are liable to be suspended
provided there is sufficient bonding to cover potential damages caused
to the corporation as a result of such suspension.
In their complaints, the appellants questioned the discretional
power of the Judge to suspend the execution of resolutions reached
by the Stockholders’ Meeting, up until the time the substance of the
matter contested is resolved, and the First Chamber was of the opinion
that such power was discretional given that Article 202 under challenge
makes it evident that the Judge "may" suspend the execution of the
resolution. That is to say, it is not obligatory in each case whereupon
such measure is requested, and it is subject to the issuance of a bond
which should legally suffice to respond to potential damages caused
to the company. Thus, the resolution by means of which the Judge
grants suspension and establishes the caution cannot be arbitrary, but
must be subject to the purpose of the norm itself, consisting of not
causing patrimonial damage to the company.
With respect to whether the suspension of the resolutions adopted
by the Stockholders’ Meeting implies a deprivation of social rights that
would create irreversible damage to the company’s equity, and with
regard to the supposed inconsistency in the fact that an opposing third
party should have a right to suspend the resolutions adopted prior to
resolving the objection proceedings, without previously hearing the
counterpart, the First Chamber was of the opinion that such a situation
does not violate the prior hearing guarantee established in Article 14
of the Federal Constitution.194
As a matter of fact, the Court was of the opinion that the
suspension of decisions reached by the Stockholders’ Meeting do not
represent a restrictive act but a nuisance, because the effects of such
suspension are not definite and do not constitute a sanction. Rather,
its effects are provisional or accessory and, are invariably subject to
the normal processing of commercial proceedings during which the
party aggrieved by the suspension is required to be a party, in the sense
that such individual must have expedite guarantee of hearing to finally
hear the related resolution on the validity or nullity of the decisions
reached by the Stockholders’ Meeting. Only up until that point could
194
Ruling 1a. CXLVII/2005, Semanario Judicial de la Federación y su Gaceta, Novena
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it be deemed effective that the restricting act is made valid to the
detriment of one of the parties in the proceedings. Thus, the First
Chamber concluded that the suspension measure contemplated under
Article 202 of the LGSM complies with all the elements necessary to
be considered a precautionary measure.
Seniority premiums for key employees at the
Petróleos Mexicanos plant must be calculated
based on their regular wages
Resolution to Opposite Rulings 129/2005-SS. Between the Seventh
Collegiate and Thirteenth Collegiate Labor Courts of the First Circuit.
October 14, 2005. Opinion delivered by Justice Guillermo I. Ortiz
Mayagoitia.
The Second Chamber of the Supreme Court was required to determine
whether the seniority premiums of key employees at Petróleos
Mexicanos (PEMEX) who obtained their retirement should be calculated
on the basis of their regular salaries or on their integrated salaries.
The Chamber indicated that ruling 2a./J. 85/99195 establishes that,
in order to calculate the retirement pension of key PEMEX personnel,
it is necessary to attend exclusively to the related Regulations Governing
Key Personnel of Petroleos Mexicanos and Subsidiary Organizations,
given that such a benefit is of an extra-legal nature. It also observed
that in conformity with the aforementioned regulation, current up until
July 31, 2002, the salary of key PEMEX personnel is to be made up of
the regular salary, including the tabulated salary, fixed quota and
variable savings fund, housing benefits and grocery vouchers, as well
as fixed extra-time in the case of shift workers, and by other benefits in
the form of Christmas bonus payments, basic grocery hamper, monthly
compensation, domestic gas, gas, profit-sharing, and transport.
195
Semanario Judicial de la Federación y su Gaceta, Novena Época, t. X, July 1999,
p. 206. Heading: PETRÓLEOS MEXICANOS, JUBILACIÓN DE SUS TRABAJADORES
DE CONFIANZA. EL BONO O INCENTIVO POR COMPENSACIÓN FORMA PARTE
INTEGRANTE DEL SALARIO PARA EFECTOS DEL CÁLCULO DE LA PENSIÓN
RESPECTIVA.
389
390
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As for the granting and calculation of the retirement pension, the
Chamber advised that this is determined as follows: workers who retire
after 25 years of services rendered to PEMEX and who are 55 years of
age may receive 80% of the average salaries received in permanent
positions over the last year of services rendered and in proportion
with the time worked in each such position, except whenever 60 days
have been acquired in the last position prior to retirement (Article 82,
Section I, of Regulations Governing Key Personnel of Petróleos
Mexicanos and Subsidiary Organizations). Moreover, with regard to
workers who retire due to permanent disability, the related pensions
are to be calculated based on the corresponding percentage of each
worker’s regular salary plus an increase relating to the number of years
and quarters of services rendered to the organization, which may not
exceed 100% (Article 82, Sections II and IV, of the Regulations).
As well as the benefits indicated, key personnel that retire will obtain a
seniority premium consisting of 20 days’ regular salary per each
accredited year of seniority (Article 82, Section IV, of the Regulations).
In order to establish the retirement pension amount and seniority
premium liquidation, the regular salary includes the tabulated
salary, fixed quota and variable savings fund, housing support and
grocery vouchers, as well as fixed overtime in the case of shift workers
which, as the case may be, will be increased by the daily proportion of
occasional extra-time worked and monthly compensation. Thus, in
the case of retirement due to age and time of services rendered, the
calculation of the retirement pension is determined based on the average
of all salaries received in permanent positions by the worker, without
any exclusion whatsoever, meaning that it suffices such a worker to
accredit the concept in question obtained (monthly compensation bonus,
in the case at hand) for it to be contemplated in the pension calculation.
The Chamber justified this on the basis that, whenever it is the intention
of the author of the regulations to limit the concepts that integrate a
salary for retirement due to age and services rendered, the calculation
of the pension base with the average salaries received would not have
been authorized for it would suffice to specify the indicated concepts
as in the case of the hypotheses of permanent disability retirement
and seniority premium.
Thus, although the Second Chamber resolved that the salaries of
key PEMEX employees is comprised of the ordinary salary and other
inherent benefits, it is true to say that such consideration has only
been made in order to establish the concepts that integrate the salary
to be used as a base for the pension calculation, as in the case of
retirement due to age and time of services rendered, given that Section
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391
I of Article 82 of the Regulations Governing Key Personnel of Petroleos
Mexicanos and Subsidiary Organizations, refers to salary obtained in
permanent positions by the worker, without specifying the concepts
that integrate such salaries, as in the hypotheses of retirement due to
permanent disability and with the seniority premium for retirement.
The Chamber established that it was not valid to consider Article
162 of the Mexican Labor Law given that permanent workers who
voluntarily leave their employment after rendering services for 15 years
at least, as well as those who cease to render services due to a justifiable
cause and those who are terminated from their positions, over and
beyond the justifiability or unjustifiability of such termination, are
entitled to receive a seniority premium equal to 12 days of salary for
each year of services rendered, for the seniority premium contemplated
in Section IV of Article 82 of the Regulations Governing Key Personnel
of Petroleos Mexicanos and Subsidiary Organizations, is a benefit that
is granted exclusively to workers who obtain their retirement, which
accounts for its extralegal nature.
The Second Chamber explained that, in conformity with Articles
41 to 55, and Article 82, Section IV, of the Regulations Governing Key
Personnel of Petroleos Mexicanos and Subsidiary Organizations (both
that repealed well as the current version), key PEMEX permanent
employees who obtain their retirement, as well as their pension, shall
be entitled to a seniority premium equal to 20 days’ regular salary
which, in terms of the last paragraph of the aforementioned Article 82
may be increased, if applicable, with a daily proportion of the
occasional overtime worked and monthly compensation. Along these
lines, the Chamber concluded that the integrated salary obtained by
key PEMEX employees cannot serve as a base for the calculation of
the seniority premium to which those who are retire are entitled, given
that Article 82, Section IV, and the last paragraph, of the Regulations
Governing Key Personnel of Petroleos Mexicanos and Subsidiary
Organizations (both in its form in force until July 31, 2002, and in its
current form) indicate that such concept must be calculated based on
the regular salary, which may be increased by the occasional daily
overtime worked and monthly compensation.196
196
Época, t. XXII, December 2005, p. 368.
In an executive mercantile process, the litis
comprises only the writ of complaint and its
response
Resolution to Opposite Rulings 102/2005-PS. Between the Ninth
Collegiate Civil Court of the First Circuit and the Third Collegiate
Civil Court of the Second Circuit. October 19, 2005. Opinion
The contradictory rulings arose, on the one hand, because the Ninth
Collegiate Civil Court of the First Circuit maintained that the litis in
the executory process is made up exclusively of the writ of summons
and response, while the Third Collegiate Civil Court of the Second
Circuit affirmed the contrary, in the sense that the litis is also made up
of the perspective available to the plaintiff with regard to the objections
presented by the plaintiff and their presentation.
The Second Chamber of the Supreme Court interpreted Articles
1061, 1069, 1327, 1399, 1400, and 1401 of the Code of Commerce
(CCom) systematically, and advised that the litis in the executory
proceedings is made up exclusively of the writ of summons and
response.
As far as the Court was concerned, the Articles in question
established that the plaintiff is required to express in his allegation of
the facts on which his action is based and offer evidence accrediting
such allegations. In turn, the defendant must refer to each fact in a
concrete manner and must present any relevant objections, offering
proof supporting such objections in the writ of response for, otherwise,
such evidence will not be admitted, save for that derived from the
actual document exhibited as a basis for the action. Moreover, the plaintiff
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394
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is given the opportunity to contest the objections presented and to offer
proof disaccrediting such allegations, which is why such opportunity
is granted exclusively for those purposes.
Moreover, the Chamber observed that Article 1400 of the CCom
establishes that whenever the defendant exhibits the documents
mentioned in numeral 1061 of the regulations, the objections presented
permitted under the law will be taken as contested, "by means of which
notice will be given for the plaintiff to have a term of three days to
present and offer the proofs he or she deems convenient"; that is
to say, the notice given to the plaintiff by means of the writ of response
is only to enable such party to provide evidence to discredit the
objections presented.
This, according to the Second Chamber, is the case because a
procedural imbalance would be created between the parties by giving
the actor a second opportunity to rectify the omissions contained
in the suit and to add facts, based on the argument that various matters
not adduced in the writ of summons perfecting the suit, without the
defendant being able to offer new proof given that he would only have
his writ of response.197
197
Ruling 1a./J. 161/2005, ib., t. XXIII, January 2006, p. 432.
The Federal Tax and Administrative Court must
enforce rulings on the unconstitutionality of
laws whenever applicable, without analyzing
whether the acts or decisions in dispute represent
the first or a subsequent act of application of the
legal rules which serve as their basis
Resolution to Opposite Rulings 43/2004-PL. Between the First
Collegiate Administrative Cour t and the Ninth Collegiate
Administrative Court of the First Circuit . October 25, 2005. Opinion
delivered by Justice Sergio Salvador Aguirre Anguiano.
The contending Circuit Collegiate Courts started from the basis of equal
elements and examined the same juridical problem: whether the Tax and
Administrative Court [Tribunal Federal de Justicia Fiscal y Administrativa
(TFJFA)], upon taking cognizance of the matter surrounding the legality
of the resolution challenged based on a legal provision declared
unconstitutional by rulings of the Supreme Court should or should not
examine whether such provision was tacitly accepted by not having
instituted amparo proceedings against the first act of application; that
is to say, whether it should verify if the resolution under challenge is
the first act of application of the legal norm qualified as unconstitutional
by the rulings, in order to dictate if its nullity in the former case is
applicable or its validity in the latter case.
The courts reached opposing decisions given that the First
Collegiate Administrative Court of the First Circuit was of the opinion
that, in the aforementioned situation, the TFJFA should nullify the
resolution challenged, despite not being empowered to examine
whether such resolution constitutes the first act of application or an
ulterior act of application of the norm declared jurisprudentially
unconstitutional. The Ninth Collegiate Administrative Court of the First
Circuit, on the other hand, was of the opinion that, in the case at
hand, the TFJFA should recognize the validity of the resolution
395
396
RELEVANT DECISIONS
challenged whenever it does not represent the first act of application
of the norm declared unconstitutional by the Supreme Court, implying
that it should examine whether this is a later act of application; that is
to say; whether the norm was approved.
The bench of the Supreme Court, considered it pertinent to recall,
the following previous rulings on the subject of the unconstitutionality
of laws: 2a./J. 38/2002, 198 P./J. 38/2002,199 2a. XXXI/2004, 200 2a.
XXXII/2004,201 2a. XXXIII/2004,202 2a. XXXIV/2004,203 2a. XXXV/2004,204
2a./J. 89/2004,205 and 2a./J. 90/2004.206
Thus, the different rulings issued by the Court with respect to the
applicability of sentences governing the unconstitutionality of laws by
the administrative authorities, the TFJFA, and the bodies of the Federal
Judiciary in direct amparo proceedings, made it evident that, first of
all, the administrative authorities are not obliged to apply sentences
on the unconstitutionality of laws established by the Supreme Court
by complying with the guarantee to ground and motivate its acts, for
Articles 192 and 193 of the Amparo Law (LA) provide that rulings
only bind the courts. However, such administrative authorities are
required to comply with the sentences whereby, based on such rulings,
the TFJFA declares the nullity of acts or resolutions challenged in nullity
proceedings. The passing of the compliance resolution does not imply
the requirement to give due observance to rulings or the imposition of
a requirement to abide by such sentences, instead establishing that
requirement in relation to the sentence of the aforementioned Court in
which it was applied. As for the TFJFA, it is required to apply the
rulings established by the Court on the unconstitutionality of laws,
provided it is valid in terms of Article 94, paragraph eight, of the Federal
Constitution, and Article 192 of the LA, for this last article makes no
distinction as to the binding force of the rulings in attending to the
matter over which it is effective. Moreover, the courts that do not
comprise the Federal Judiciary, as in the case of the TFJFA, lack
198
Semanario Judicial de la Federación y su Gaceta, Novena Época, t. XV, May
2002, p. 175.
199
Ib., t. XVI, August 2002, p. 5.
200
Ib., t. XIX, June 2004, p. 387.
201
Ib., p. 386.
202
Ib., p. 386.
203
Ib., p. 383.
204
Ib., p. 384.
205
Ib., t. XX, July 2004, p. 281.
206
Ib., p. 282.
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397
jurisdiction to analyze the validity of the challenge of the law, and to
judge on its constitutionality. However, upon application, the action
of the sentence governing the unconstitutionality of laws is limited to
evaluating the legality in terms of whether the act or resolutions under
challenge adhere to constitutional Article 16, concluding that they do
not, on the grounds that their basis is a precept declared legally
unconstitutional. The study does not jeopardize the principle of relativity
of amparo sentences for it indicates that, in such sentences, no general
declaration on the unconstitutionality of the law or the act contested
may be made, and that protection is only granted to the individual
seeking constitutional protection. On the other hand, the aforementioned
administrative Court does not invalidate the law or declare its absolute
inapplicability by applying jurisprudence. Furthermore, the application
to be made by the TFJFA of the ruling declaring the unconstitutionality
of a law is not unrestricted but is conditioned by the admissibility of the
nullity proceedings, which is not the case whenever the acts under
challenge were approved by the plaintiff, and without this impeding the
application of the sentence in ulterior nullity proceedings, as may be
applicable. As in the case of the direct amparo proceedings, the sentence
pronounced in the nullity proceedings generate effects against the
resolution under challenge but not against the law that serves as its
foundation.
With regard to the bodies of the Federal Judiciary, upon hearing
the direct amparo proceedings, when the act contested is based on the
law declared unconstitutional in a ruling issued by the Court, the Court,
specified that the substitution of the deficient complaint contemplated
under Article 76 Bis, Section I, of the LA, was instituted in order to
achieve efficacious control of the constitutionality of laws for purposes
of ensuring the prevalence of the Constitution as Supreme Law, which
makes it indispensable to overcome technical factors and questions as
well as procedural matters that are incompatible with the purposes
specified. The judges in amparo proceedings should replace the deficient
complaint in an absolute manner to make the unconstitutionality
declaration effective. For this reason, although the concept of violation
against the law is not made valid and regardless of whether the first or
ulterior act of application is contested, it results valid even if the tacit
approval of the law derived from the failure to challenge the first act of
application has operated. Moreover, rulings on the unconstitutionality
of laws is applicable in diverse cases motivating its issuance, without
this implying that general effects are to be granted to the declaration
of unconstitutionality of the law, for that that would only result in its
non application to the concrete cases under dispute. Finally, in the
398
RELEVANT DECISIONS
direct amparo alleging the unconstitutionality of a law, it is necessary
to substitute the deficient complaint even in the case of ulterior acts of
application whenever the law on which such acts are based has been
declared unconstitutional by a ruling of the Court, for the challenge of
a legal norm in a single instance of amparo does not rule out the
possibility that the same plaintiff granted constitutional protection
against the first act of application of the law declared unconstitutional
may be a position to once again challenge by means of a direct amparo,
upon application of a second or ulterior act of application, given that
the sentence issued in these types of proceedings produces direct effects
only in relation to the resolution challenged, but not as a law challenged,
observing thus the principle of relativity of amparo sentences, given
that the declaration of unconstitutionality does not make effective the
annulment of a law with erga omnes effects.
Based on the different criteria established by the Court on the
applicability of rulings on the unconstitutionality of law and with regard
to the matter under dispute submitted for its arbitration, the Court,
determined that the TFJFA, by complying with the obligation imposed
by constitutional Article 94, paragraph eight, and Article 192 of the
LA, is not empowered to analyze whether the norm governing such
act or resolution and declared unconstitutional was tacitly approved
by the plaintiff by not having instituted amparo proceedings against
the first act of application. That is to say, it is not required to verify
whether the resolution challenged constitutes the first or ulterior act of
application of such resolution given that, on the one hand, such tribunal
is incompetent not only to judge on the constitutionality of the law,
but also to analyze the validity of a challenge and, on the other hand,
because the application of the jurisprudence in question operates
independently of whether the act or resolution under challenge in the
annulment proceedings constitutes the first or ulterior act of application
of the unconstitutional norm. In these types of proceedings, as in the
case of a direct amparo, the sentence dictated produces effects only
against the act or resolution under challenge and not against the law
that serves as its foundation.207
207
Ruling P./J. 150/2005, ib., t. XXIII, January 2006, p. 5.
Title Twelve of the Bankruptcy Proceedings
Law does not favor foreign proceedings or law
by granting equal treatment to domestic and
foreign creditors
Amparo under review 1588/2004. October 26, 2005. Opinion
The appellant had claimed the unconstitutionality of Title Twelve of the
Commercial Insolvency Law (LCM), published on May 12, 2000 in
the Federal Official Gazette. The First Chamber of the Supreme Court
was of the opinion that it was false to maintain that such document was
unconstitutional because it favors foreign proceedings and law, placing
them over and above the national legal system and leaving the creditors
resident in the country defenseless. Its text makes it evident that it cannot
be interpreted in a manner opposed to the laws or to the fundamental
principles of law effective in the country. The legislator thus safeguarded
the aforementioned fundamental principles and the national legal system,
and granted equal treatment to foreign and national creditors without
establishing any kind of priority.
The First Chamber maintained that the legislative process that
gave rise to the LCM made it evident that Title Twelve of such regulations
were put together on the basis of the country’s incorporation into the
world economy and in face of a process of globalization, facilitating
the cooperation between the courts of different countries for bankruptcy
and contest purposes, and because of the increase in transactions
outside the country. The presentation of motives makes it evident
that in the aforementioned Title, the Draft Law created by the United
Nations Commission for International Commercial Law on Trans-border
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400
RELEVANT DECISIONS
Insolvency was taken as a basis. Such Draft Law sought to establish
efficient methods to resolve cases of cross-border insolvency, with the
objectives of achieving cooperation between courts and other
competent authorities between the States intervening in cases of
insolvency. This grants greater legal certainty to trade and investments
and means a fair administration of the aforementioned insolvencies
protecting the interests of creditors and debtors, as well as of the
optimization and protection of the goods belonging to the debtor.
The Court observed that, among other matters, the Draft Law
specified the instances for its application, access of representatives and
foreign creditors to the courts of the State, and the recognition of
the foreign proceedings and measures to be granted, if applicable —a
chapter adopted under the Title under challenge. From the text of such
Law, it is evident that Article 3 contemplates that, in case of a conflict
between such law and an obligation of the State derived from a treaty
or any other form of agreement whereby the former is a party with
one or more States, the provisions of such treaty or agreement are to
prevail. This precept contemplates the supremacy of international
obligations contracted by the State even above domestic law.
The Court added that Article 6 of the Draft Law contemplates a
public order exception in the sense that nothing contemplated under
such Law may impede the Court from refusing to adopt a measure
therein regulated, whenever such measure is manifestly contrary to the
public order of the State, except when invoked to deny the application
of a foreign norm or the recognition of a resolution whose application or
recognition would provoke the violation of a fundamental principle
of the State. Likewise, the Draft Law contemplates the need to notify
foreign creditors in order to advise them of the start of insolvency
proceedings and of the related term permissible to present their credits
which, according to the First Chamber, represents an effort to seek
equality of treatment for foreign creditors. The Law also contemplates
the protection of creditors and persons interested in the recognition of
foreign proceedings seeking a balance between the measures that may
be granted to the foreign representative and the interests of the persons
who might be affected by the measures adopted in such proceedings.
Also contained is a chapter of cooperation with courts and foreign
representatives conducive to permitting the courts and administrators
of the insolvency derived from two or more countries to be efficacious,
avoiding the dispersion of property and optimizing its value.
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The First Chamber indicated that the Title under challenge in the
LCM was issued by the legislator based on the Draft Law indicated,
and that such Title makes evident the assumptions to which it is
applicable and the definitions of the terms therein used, and specifically
prohibits an interpretation contrary to the fundamental principles of
law prevailing in the Mexican Republic; that is to say, the individuals
indicated under Article 283 of the LCM are obliged by such regulation
not to adopt any measure whatsoever that contravenes the law or
such fundamental principles.
Moreover, the First Chamber emphasized that, in accordance with
the Draft Law, Article 290 of the LCM establishes an equality of rights
for foreign creditors and national creditors with respect to the opening
of proceedings in the country, while Article 291 of the law establishes
the obligation of notifying the national and foreign creditors, as well
as requirements to be observed in relation to such notifications. The First
Chamber advised that Article 293 of the LCM establishes the
application of the chapter relating to the inspection visit whenever
recognition of foreign proceedings relates to a trader established in
Mexico, while Article 300 specifies the measures necessary to protect
the goods of the trader or the interests of the creditor, as in the case of
suspension of all execution measures, the suspension of the right to
transfer or encumber the goods of the trader, or to dispose of such
goods in any other manner; to determine the presentation of evidence
or provision of information with respect to the property, business, rights,
obligations, or liabilities of such traders and relating to making a syndic,
mediator, or inspector responsible for the administration of the property
of the trader.
Thus, the First Chamber concluded that the plaintiff had erroneously
affirmed that the LCM, specifically Title Twelve, is unconstitutional
because it favors the foreign proceedings and law, placing them over
and above the legal order of the country and leaving the creditors
resident in the country in a state of defenselessness. The Title may not
be interpreted in a manner contrary to the law or to the fundamental
principles of law prevalent in the country.
The Chamber added that there is also an express provision under
the law granting equal treatment to foreign and national creditors,
without establishing any kind of priority exclusively because of their
foreign condition, but merely respecting the priority in that sense
contemplated under the law. Thus, it was inexact that the law provided
401
402
RELEVANT DECISIONS
unequal treatment. The Chamber clarified that it also guarantees that
aspects relating both to the inspection visit and to the precautionary
measures should be observed in case of recognition of a proceeding
with respect to traders established in Mexico.
Furthermore, the First Chamber considered inefficacious the
affirmation of the plaintiff in the sense that the LCM transgressed
Articles 1, 14, 16, 17, 121, Section II, 123, and 128, all of the Federal
Constitution, as a result of failing to make a confrontation between
the law contested and such constitutional precepts.
In terms of the grievances relating to the violation of constitutional
Article 133, the Chamber considered correct the consideration of the
District Judge in the case of the sentence appealed, given that,
regardless of whether the reciprocity between the United States
of America and Mexico could be analyzed, there was no violation of
constitutional Article 133, in the case at hand given that there was no
hierarchical problem between the federal law and an international
treaty. The fact that Mexico should have signed the Inter-American
Convention on Extraterritorial Validity of Foreign Decisions and Arbitral
Awards, carried out in Montevideo and whereby, other than
categorically excluding the matter of personal actions of a patrimonial
nature whenever the defendant has no habitual address or residence
on the State territory where the sentence was pronounced, was not
considered to bind a country that was not a party, the truth being that
the exclusion specified in such Convention is only valid for contracting
States and, although Mexico has an obligation to adhere to it, this
does not impede the legislator from establishing related provisions
which, if applicable, are effective in matters not covered by an existing
international treaty or agreement, as in the case of the United States.
Fur thermore, Ar ticle 280 of the LCM clearly establishes that
the provisions of the Title will be applicable provided there are no
contrary provisions in an international treaty to which Mexico is a
party, in strict adherence to constitutional Article 133.
To accredit the offense of possession in drug
related crimes as contemplated under Article 195,
paragraph one, of the Federal Criminal Code,
both the prosecuting authorities and judge are
required to specify the behaviors sought to be
carried out by the perpetrator in numeral 194 of
said Code in connection with the narcotics seized
Second Collegiate Criminal Courts of the Third Circuit. October 26,
Villegas.
The two courts whose rulings resulted contradictory examined the same
legal question relating to the make-up of the offense contemplated
under Article 195, first paragraph, of the Federal Penal Code (CPF).
The two courts adopted different points of view with respect to the
matter. The First Collegiate Criminal Court of Circuit Three maintained that,
in order to integrate the offense contemplated in the aforementioned
legal precept, it is necessary to specify the objective of the perpetrator
in possessing the narcotics and to clearly indicate what the conduct
involved is. Such conduct should be specified from those established
under the related Code in Article 194 sought to be carried out by the
agent in order for the offense to be duly notified to the accused in
terms of Article 20 of the Federal Constitution. For its part, the Second
Collegiate Criminal Court of Circuit Three maintained that in order to
demonstrate the subjective element other than the fraud, the first
paragraph of Article 195 of the CPF does not require the conduct that
was planned to be carried out by means of the narcotics to exist, but,
rather, only the data and circumstances from which it is understood
that there was an intent to carry out one of the conducts contemplated
under Article 194 of the code, without a need to establish which one
exactly because it is not necessary to accredit any specific conduct,
that is to say, it is not necessary to integrate the offense contemplated
under Article 194.
403
404
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The First Chamber of the Court was of the opinion that Article
195 of the CPF, reformed by means of the decree published on January
10, 1994, establishes that the conduct described has a specific penalty in
accordance with the finality of the narcotics in the possession of the
perpetrator for it is evident that a most severe sanction is pronounced
on the possession for purposes other than personal consumption; that
is to say, whose objective is one of the conducts specified in Article
194 of the code.
The Chamber observed that the typical description given to drug
related offense in terms of its type is clear and precise in the sense that
the term "to possess" employed is of common use, making it easy to
understand that the conduct sanctioned is any act capable of
demonstrating that the perpetrator can make use of or freely dispose
of any of the narcotics established under numeral 193 of the CPF, in
order to carry out one of the conducts contemplated under Article
194. The element constituting the specific type of criminal offense,
consisting of the possession of the narcotics, is objective and is made
up of the realization of acts that are external to the perpetrator, and
that may be perceived through the senses, and may be demonstrated
by direct evidence. Thus, the judge, when valuing the evidence, is
able to conclude whether such conduct realized by the perpetrator
involved the holding, use, or disposition of the narcotics.
The First Chamber indicated that Article 195 of the CPF
contemplates as a punishable conduct that of possessing some of the
narcotics indicated under numeral 193 without legal authorization from
the competent authority and in order to realize one of the conducts
determined in Article 194 of the same code. Possession consists of
carrying, having under dominium, or immediate disposition. The
juridical good safeguarded in this offense is public health and
the perpetrator does not have any specific quality, while the passive
subject is the collective. The finality represents a subjective element
other than the fraud given that the latter consists of the will to possess
the narcotics without the respective legal authorization.
The Chamber was of the opinion that both the agent of the
Prosecuting Authorities and the judge are obliged to establish the
conducts described under Article 194 of the CPF sought to be carried
out by the perpetrator in the case of the offense contemplated under
the first paragraph of numeral 195, in adherence to the guarantee
granted under Section III of constitutional Article 20. In fact, in
conformity with this latter regulation, the offender is to be notified of
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the name of his accuser, the nature and cause of the accusation so
that he may be duly informed of the offense attributed to his person,
and whether the finality alluded to in the first paragraph of Article 195
of the CPF constitutes a subjective element of a criminal nature, and
whether it is necessary to specify such element. That is, to indicate
which of the conducts described in Article 194 of the same code, the
perpetrator sought to carry out.
The Court clarified that the pronouncement of the Judge in relation
to the subjective element mentioned is of procedural transcendence
given that accrediting drug related offenses, in the form of possession
of narcotics, confronts the judge with two different penal forms, one with
aggravation —as contemplated in Article 195 of the CPF— and the
other attenuated —as contemplated in Article 195 bis. In the case of
the latter, some substitution benefits of the penalty may be enjoyed
provided the requirements established under the law are fulfilled.
Whenever, the Judge is of the opinion that the aggravated offense is
not accredited, but the attenuated offense can be demonstrated, the
penalty relating to the latter type may be imposed, given that only
the degree of the offense varies. It is transcendent in that measure that,
upon dictating the sentence, the Judges and the Prosecuting
Authorities upon presenting the accusation, pronounce themselves with
respect to which of the conducts contemplated under Article 194 of
the CPF was sought to be carried out.208
208
Ruling 1a./J. 164/2005, ib., June 2006, p. 11.
405
NOVEMBER
2005
The Transparency and Access to Government
Information Law has no impact on constitutional
Articles 14 and 16
Amparo under review 1048/2005. November 9, 2005. Opinion delivered
Upon resolving this matter, the First Chamber of the Supreme Court
indicated that the Transparency and Access to Government Information
Law (LFTAIPG) does not violate constitutional Articles 14 and 16, given
that their norms do establish the methods necessary not to jeopardize
the legality and legal certainty guarantees. In this sense, the aforementioned
law and related Regulations establish the possibility of requiring the
consent of the individuals holding the information requested in order
to provide determined documentation, with an option to refuse to do
so. Authority is also granted to eliminate the confidential documentation
or information and to prepare public versions of the documentation, to
ensure that its purposes and activities are not jeopardized.
The First Chamber was of the opinion that given the role and
objective of the LFTAIPG, which is to ensure the transparency and publicize
all the acts of the federal authorities, as well as to guarantee the right
to information contemplated under constitutional Article 6, such
regulations must seek a balance between the principles contained in
the aforementioned Article and those contemplated under numeral
16. For such reason, methods are established to achieve the purposes
of the LFTAIPG, in its sui generis form, and to, in turn, guarantee the
holders of information involving the federal government, that their
subjective public rights are not jeopardized, and establishing that
407
408
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individuals required to provide information to the subjects bound for
dissemination purposes, are empowered to indicate the sections,
headings, subsections, and documentation that the consider confidential
and reserved, and the elaboration of public versions in order to disclose
only the portions not considered confidential and reserved, and thus
avoid potential damage derived from expressly requiring the consent
of such individuals to provide the information in question.209
The plaintiffs also indicated that the law contested affected them
by requiring them to tolerate that the aggrieved third party should
know the contents of interconnection agreements; that is to say, the
documents which do not involve the participation of any authority
whatsoever. Thus, the First Chamber expressed that the aforementioned
agreements generally involve the authorities, meaning that the latter
publicize the acts in which they have some form of participation. The
Chamber observed that Articles 3, 41, 42, 47, 64, and 65 of the LFTAIPG,
make it evident that administrative authorities do participate in
interconnection agreements, as in the case of the Communication and
Transports Secretariat. The Court specified that the interconnection
agreements, other than being an agreement of will between individuals
in which the administrative authorities intervene, are documents
deposited in a telecommunications register given their characteristics.
Such records, in accordance with the Federal Telecommunications Law
(LFT) are public and may be consulted by any person. It is therefore
clear that the publicity of interconnection agreements is not derived
from the LFTAIPG, given that it is the LFT that requires the publicity of
information, with certain exceptions due to confidentiality considerations.
The First Chamber indicated that constitutional Article 16 is not
violated because, in order to comply with the mandate established by
the LFTAIPG, the authority is required to demand that the passive
subject present determined documentation. Moreover, in conformity
with the LFT, in the case of the plaintiffs, they are required to publicize
their agreements and concessions, upon forming par t of the
telecommunications registry, in accordance with Articles 64 and 65 of
such law. The Chamber added that, from the above it is evident that
given the objectives of the LFTAIPG, for the authority to duly comply
with the mandate contained in it, an act of nuisance is required, giving
fulfillment to the mandate contained in Article 16 of the Federal Constitution,
209
Ruling 1a. XXXVII/2006, ib., February 2006, p. 650.
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409
that is, exercising its powers by means of an act of nuisance that complies
with a determined objective.
With regard to the consequence brought on by omitting the
provision relating to what information or documentation delivered to
the authorities must be considered confidential, that is unconstitutional
given that the citizens cannot be deprived of the right to privacy and
confidentiality of their documents and information and while fulfillment
is not given to the hearing and legality guarantees, the Court indicated
that both the LFTAIPG and its Regulations establish provisions to
avoid jeopardizing the principles included in constitutional Articles
14 and 16. Moreover, requesting the qualification relating to the
documentation in the power of the authorities from the holder of
the information upholds the fulfillment of the Federal Constitution.
That is to say, the holder of the information is permitted to exercise
his power to qualify in a determined manner the documentation in the
power of the authority which, in the case of a public record (in terms
of the LFT), and not in accordance with the LFTAIPG. In this sense,
the moment the holder of the information exercises such possibility
granted under the law, the prior hearing guarantee is fulfilled. 210
210
Ruling 1a. XXXVI/2006, ib., p. 651.
A tax review is valid against the decisions of
the Regional Chambers of the Federal Tax and
Administrative Court nullifying the administrative
resolution on the responsibilities of government
servants, issued in terms of a federal norm
other than the Federal Law of Administrative
Responsibilities of Public Officials
Resolution to Opposite Rulings 168/2005-SS. Between the Ninth
Collegiate Administrative Court of the First Circuit and the
Fifth Collegiate Administrative Court of the First Circuit. November
11, 2005. Opinion delivered by Justice Genaro David Góngora
Pimentel.
In relation to the necessary assumptions required for the existence of
a contradiction of rulings, 211 the First Chamber of the Supreme Court
found that, between those upheld by the Ninth and Fifth Collegiate
Administrative Courts of the First Circuit, the following was observed:
1.
2.
That, upon resolving the juridical business, essentially equal
juridical questions are examined: this requirement was fulfilled
because the Collegiate Courts indicated examined a concrete
point of law, consisting of the admissibility of a review for appeal
against the sentences of the Tax and Administrative Court
resolving on the liability of the members of the public security
and Prosecuting Authority bodies, in terms of Article 248, Section
IV, of the Federal Tax Code (CFF).
That the difference in criteria is presented in the considerations,
rulings, and interpretations of the respective sentences: also
updated was this requirement given that the Fifth and Ninth
Collegiate Administrative Courts of Circuit One, upon resolving
the matters submitted to their arbitration, basically maintained the
admissibility of the tax review recourse instituted against the sentences
of the Tax and Administrative Court resolving on the liability of public
211
La jurisprudencia. Su integración, 2a. ed., México, Suprema Corte de Justicia de
la Nación, 2005, p. 41.
411
412
RELEVANT DECISIONS
3.
security and Prosecuting Authority bodies, in terms of Section IV
of Article 248 of the Federal Tax Code.
That the different criteria should be derived from the study of the
same elements: in the matters involved in this contradiction of thesis
the tax review was promoted whereby the admissibility of such
recourse against the sentences dictated by the Tax and Administrative
Court were studied regarding the liability of the members of the
public security corps, in terms of Section IV of Article 248 of the Federal
Tax Code.
Upon resolving the tax review recourse 201/2005, the Fifth
Collegiate Administrative Court of the First Circuit, dismissed the case
because it was of the opinion that some of the hypotheses contemplated
under Article 248 of the Federal Tax Code, were well grounded,
including Section IV of such numeral for the matter did not pertain to
the Federal Government Workers Responsibilities Law (LFRSP) but
to an administrative proceeding in terms of the Public Prosecutors Law
(LOPGR). On the other hand, the Ninth Collegiate Administrative Court
of Circuit One, upon hearing tax review recourse 251/2004-3443,
considered it admissible by analogy, given the similarity existing
between the disciplinary proceeding instituted against members of the
public security corps and those regulated by the LFRSP, given that in
both lawsuits the sentences decide on the responsibility of individuals
of the same legal nature.
The Second Chamber advised that the point of contradiction
consisted of determining the admissibility of the review recourse
established by Article 248, Section IV, of the Federal Tax Code, against
sentences dictated by the Tax and Administrative Court declaring the
nullity of the resolution challenged derived from a disciplinary
proceeding instituted by means of a federal norm different from the
LFRSP.
The Court would issue a ruling to resolve the contradictory rulings.
It was resolved that Article 248, Section IV, of the Federal Tax Code,
expressly establishes the admissibility of the review recourse whenever a
resolution pertaining to the LFRSP is challenged.212 The Chamber
added that, although Articles 12 to 15, of the Federal Preventive Police
Law (LPFP), Articles 132 to 177 of the related Regulations, and
Articles 53 to 75 of the LOPGR, make it evident that they regulate
disciplinary matters pertaining to members of the Federal Preventive
212
Currently Ley Federal de Responsabilidades Administrativas de los Servidores
Públicos.
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Police, the agents of the Prosecuting Authorities, of the Federal Police
Investigator and experts, it may be concluded that along with the
Government Workers Administrative Liabilities Law (LFRASP), such
norms coincide both in terms of their objectives and ends for they
seek to safeguard the principles of legality, honesty, loyalty, impartiality,
and efficiency of the public service. Therefore, the review recourse
contemplated in Section IV of Article 248 of the Federal Tax Code
against sentences declaring the nullity of administrative resolutions in
matters pertaining to the liabilities of government workers is valid, as
dictated in terms of federal norms other than the LFRASP, as in the
case of the LPFP and its Regulations, and the LOPGR, for it is not
the name of the law that is to be taken as a relevant consideration to
establish the admissibility of the recourse in question, but the matter
governed.213
213
Época, t. XXII, December 2005, p. 369.
413
The grounding and motivation requisites in
the taxpayer accounting requirement of the
Federal tax authorities established under
Articles 16 of the Mexican Constitution and 38,
Section III of the Federal Tax Code, do not go
as far as requiring such an act to be based on
Article 28 above, which sets forth its related
elements
and Third Collegiate Courts of Circuit Eight. November 11, 2005.
Opinion delivered by Justice Genaro David Góngora Pimentel.
The Second and Third Collegiate Courts of the Eight Circuit resolved the
tax reviews filed against sentences issued by the Regional Chambers
of the Tax and Administrative Court, decreeing the nullity of the tax
rulings as a result of not precisely specifying the legal provision
that establishes what the law considers "elements comprising the
accounting". The Second Collegiate Court of Circuit Eight was of
the opinion that the authority is not required to cite any precept
whatsoever regarding what are the elements integrating the accounting,
in the request for information or documentation. For its part, the Third
Collegiate Court of Circuit Eight maintained that, in conformity with
Article 38, Section III, of the Federal Tax Code (CFF) and, thus,
with the legal certainty and legality principles contemplated in Article
16 of the Federal Constitution, the respective request must precisely
establish the legal provision specifying what the law considers as
elements integrating the accounting.
The Second Chamber of the Supreme Court would resolve the
controversy. Firstly, it indicated that the acts of nuisance issued by
the federal tax authorities must have a legal basis and motivation in
accordance with both constitutional Article 16 and numeral 38, Section
415
416
RELEVANT DECISIONS
III, of the Federal Tax Code. It added that one of the acts of nuisance
carried out by the tax authorities consists of requiring the accounting
records of taxpayers to verify that they, the jointly liable parties or related
third parties, comply with tax provisions. The Second Chamber
insisted that such a requirement must be grounded and motivated and
must also present in printed or digital documentation form, its related
issuing authority, bearing the signature of the competent officer along
with the name or names of the persons to whom it is addressed, in
conformity with Sections I, II and IV of Article 38 of the Federal Tax Code.
Nevertheless, the Chamber indicated that the scope of the legal
basis and motivation in the exercise of such powers does not mean
that the requirement indicates the legal precept establishing the
concepts that comprise the accounting records given that Article 28 of
the Federal Tax Code (establishing the elements comprising the
accounting records) is a norm imposing an obligation on taxpayers,
but which does not grant the tax authorities powers. The Second
Chamber added that the accessory or formal tax obligations of
taxpayers include that of keeping accounting records, which points at
the requirement to do so in the form established by the CFF and related
regulations, and to include all related elements that comprise. The
Chamber agreed that such obligation is required of the taxpayers as
from the moment they are registered with the Federal Taxpayer
Registration Number, in accordance with Article 27 of the Federal Tax
Code, and independently of the fact that the tax authorities are able to
demonstrate that this is being done.
Thus, the Chamber concluded that it cannot be maintained that
it is indispensable to fulfill the requirement in Article 28 of the Federal
Tax Code in order to provide legal certainty to the individual on the
argument that, on the basis of quoting such precept, the taxpayer will
know what is being required of him for, under the principle that all
citizens know the laws, it may be presumed that the taxpayer is aware
of the comprising elements given that the obligation is his, and that
this precedes fulfillment by the authorities. Under the assumption
that the individual is aware of the elements comprising accounting
records, it is unnecessary to cite Article 28, for the latter establishes
obligations for the taxpayer and, although the authority can verify
fulfillment, its powers are not derived from such precept.
The Second Chamber added that Article 42, Section II, of the Federal
Tax Code, grants the authorities the powers to require the taxpayers to
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keep accounting records in order to verify that such taxpayers, the
jointly liable parties or related third parties, comply with tax provisions.
Thus, if the authorities ground their performance on the aforementioned
provision, the taxpayer has the certainty that the authorities are acting
within the limits and in accordance with the powers conferred by the
law. In short, the Chamber established that the moment they exercise
their verification powers in terms of Article 42, Section II, of the Federal
Tax Code, the tax authorities are not required to cite the precept
establishing the elements that comprise accounting records.214
214
Ruling 2a./J. 152/2005, ib., p. 327.
417
It is necessary to attend to the genesis of the
decision contested and to decree the nullity
established in Article 239, Section III, last
paragraph of the Federal Tax Code, in the case
of tax fines not fulfilling grounding and
motivation requirements
Resolution to Opposite Rulings 158/2005-SS. Between the First
and Second Collegiate Administrative and Civil Courts of the Nine
Circuit and First Collegiate Administrative Court of the Second Circuit.
November 11, 2005. Opinion delivered by Justice Genaro David
Góngora Pimentel.
Upon issuing resolution to opposite rulings 158/2005, the Second
Chamber of the Supreme Court resolved that in the case of tax fines
imposed by the administrative authorities upon detecting a violation
of tax provisions derived from the exercise of verification powers,
declared illegal by the Tax Code as a result of not fulfilling requirements
referred to in Article 38, Section III, of the Federal Tax Code, in
accordance with Section II of Article 238 of such regulations, the nullity
to be decreed for such purposes must be in accordance with the genesis
of the resolution challenged and, if applicable, declared that
contemplated in Section III, final paragraph, of Article 239 of the
Federal Tax Code, given that the sanctioning administrative act that
fails to comply with the formal requirements mentioned previously
represents the culmination of the discretional powers exercised by the
tax authorities. Thus, in this type of matters, the Tax and Administrative
Court cannot require the authorities to dictate a new resolution given
the discretionality granted by the law to decide whether they should
operate or abstain, for, as well as the fact that such Court cannot
substitute the plaintiffs in the appreciation of the circumstances and in
the opportunity to act as provided by the laws, this could be detrimental
as a result of its administration as opposed to being beneficial. However,
neither is it valid to impede the administrative authorities from
pronouncing a new resolution given that this would be equivalent to
419
420
RELEVANT DECISIONS
restricting its power of election. Thus, when the discretional act is only
censured as a result of a lack of grounds and motivation, this does not
represent a violation of Article 16 of the Federal Constitution to the
detriment of the individual by declaring the nullity of the act challenged
in terms of Article 239, Section III, and last paragraph of the Federal
Tax Code, given that the norm resolves the problem to all extents and
purposes. The control exercised by juridical channels by the Tax
and Administrative Court fully protects the individual from the concrete
act, especially if it is considered that due to the formal vice detected,
whenever the sentence of nullity is dictated in terms of Section II of the
aforementioned Article 238, the core problem is not resolved relating
to the fine imposed given that it has not been determined whether the
violating conduct of the taxpayer has been realized or not, and it is not
known whether a new resolution will exist to the detriment of the party
reviewed or visited.215
The indicated decision was due to the fact that the Second
Chamber advised that there was a contradiction of thesis between that
maintained by the First and Second Collegiate Administrative and Civil
Courts of Circuit Nine and the First Collegiate Administrative Court of
Circuit Two. In the case at hand, the First and Second Collegiate
Administrative and Civil Courts, of Circuit Nineteen maintained that
in order to establish the nullity that must be decreed whenever a tax
fine incurs in a formal vice —undue grounding and motivation—
updating the cause of illegality contemplated in Section II of Article
238, of the Federal Tax Code, it is necessary to abide by the genesis or
origin of the act under challenge. Thus, as to whether this is derived
from the exercise of verification powers (discretional), the nullity must
be in terms of the last paragraph of Section III of Article 239, of the
Federal Tax Code, leaving the administrative authorities free to issue a
new act. On the other hand, the First Collegiate Administrative Court
of Circuit Two was of the opinion that, if the act under challenge was
issued without complying with the grounding and motivation
requirements, this brings on the nullity of the resolution challenged
in terms of Section II of Article 238, in relation to numeral 239, Section
III, of the Federal Tax Code, for the plaintiff authority to issue another
in substitution and whereby the legal requirements mentioned are
fulfilled, taking into consideration that the imposition of sanctions does
not originate from a discretional faculty, but derived from a regulated
power, as contained in the first paragraph of Article 76, Section II, of
215
Ruling 2a./J. 149/2005, ib., p. 366.
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421
the regulations in question upon indicating the specific conduct that
must be followed by the authority in light of the legal updating. In the
case of tax fines, it is necessary to make a systematic interpretation of
he law to discover the true intention of the legislator, in accordance
with the regulatory body including the provision in question, observing
firstly that this is not a discretional power because it implies the exercise
of inspection authorities in the fulfillment of tax obligations and
the partial or total omission of tax payment, and secondly, because,
due to the technique employed by the federal legislator, which makes
it evident that whenever a discretional power has been granted, this
has been done in a precise manner given that it indicates that covered
by its nature.
The Supreme Court declares the nullity of various
provisions of the State of Colima Electoral Code
Unconstitutionality Dispute 30/2005. November 14, 2005. Partido
de la Revolución Democrática. Opinion delivered by Justice Margarita
Beatriz Luna Ramos.
In the proceedings, the plaintiff demanded the invalidity of various
articles of the State of Colima Electoral Code prior to and after its
reform dated August 31, 2005. In its decision, the bench of the Supreme
Court indicated that Article 25 of such law, the establishment of the
term of a month to exhaust instances of challenge relating to the matter
taken as from the issuance of the call for extraordinary elections for
governor contravened Article 116, Section IV, subparagraph e), of the
Federal Constitution, given that it is impossible to exhaust the challenges
presented by the parties against the acts of preparation of such vote in
such a term, for even if the administrative terms contemplated in such
law were complied with, and the jurisdictional requirements established
under the Means of Challenge System Law for Electoral Purposes, in
conformity with the power granted under its Article 6, to the Electoral
Court, in plenary, of such State in order to reduce the terms of challenge
and substantiation of procedural recourses, the time would be
insufficient for the Electoral Court of the Federal Judiciary to process
and resolve the instances promoted against the resolutions of a local
nature in a timely manner with regard to the preparation work for the
issuance of the respective vote.216
216
Ruling P./J. 52/2006, ib., t. XXIII, April 2006, p. 583.
423
424
RELEVANT DECISIONS
Moreover, in relation to Article 55, Section VI, of the Electoral
Code for the State of Colima, the Court, considered that there was
no constitutional obligation for the local electoral laws to establish
that the political parties are required receive an equivalent additional
sum to that ordinarily received outside the electoral period. Likewise,
it resolved that Article 63 Bis-5 of the Electoral Code of the State of
Colima, maintains the administration of the prerogatives and public
financing to obtain the vote, in favor of a single party postulating a
common candidature, excluding from such administration the other
or others integrating the front, which would go against constitutional
Article 41, Section I, and Article 116, Section IV, subparagraph f). As
for the cap on the campaign expenses of parties postulating a common
candidature, the Court, in plenary, maintained that such a norm violates
subparagraph h) of Section IV of constitutional Article 116, which
establishes the obligation to guarantee the establishment of criteria to
determine the disbursement limits of political parties in their electoral
campaigns. 217
With regard to Article 63 Bis-5, the Court, observed that this text
is ambiguous in contemplating that the respective prerogatives shall
correspond exclusively to the political party that represents the greatest
electoral force from among those participating on a common front
with a single candidate, and that it breaches the principle of equity
instituted in this regard by subparagraph f) of Section IV, of constitutional
Article 116. The Court, was also of the opinion that there is no
constitutional obligation requiring the internal pre-candidatures of the
political parties to necessarily have public financing, but must instead
be subject to that established in this respect under the secondary
legislation. In this respect, the High Court considered it false that Article
205 Bis-14 of the aforementioned code permits the support of pre-campaigns
—lacking the specific regulation of the Federal Constitution— with
public resources, but that it only authorizes each party to make
disbursements attributable to their ordinary annual financing by way
of operating expenses and diffusion of internal processes.
Moreover, the Court was of the opinion that the addition dated
August 31, 2005, to the fourth paragraph of Article 301 of the Electoral
Code of the State of Colima generates privileged treatment in favor
of the winning party, benefiting such party with a specific multimember
deputy assignation procedure that the other parties do not enjoy. This
217
Ruling P./J. 54/2006, ib., p. 582.
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was alleged to violate the principle of electoral equity 218 —which
presupposes the granting of the same treatment for the adjudication
of such popular representatives— as well as the general guidelines of
the principle of proportional representation. 219 Likewise, the reform
to Section II of Article 61, of the aforementioned Code —the Court, in
plenary, added— introduced a novel procedure for a better control of
distribution of private radio and television times and expenses during
the electoral process, in order for the authority in charge of organizing the
vote to directly audit that disbursed by the political parties in such
means of diffusion, with respect to the requirement of constitutional
Article 116, Section IV, subparagraph g), which requires such authority
to provide equitable conditions for the access to mass media. All things
considered, the expression contained in Article 61, Section II, of the
local Electoral Code, in the sense that political parties must contract
private radio and television "...payable by means of the related budget
for propaganda in the year of election...", refers to the expenses
contemplated by each party, and as programmed to diffuse their
propaganda during the electoral period. Therefore, the norm adheres
to a consistent reality whereby all parties have the same economic
potential and, consequently, what could potentially budget for radio
and television to be derived from official financing to obtain votes or
from their own resources, must be diverse, and the norm only contemplates
this factual situation in order for it to be included in the method for
contracting the space in such means of communication. 220
On the effects of the invalidity declaration, the Court, determined
that the Executive and Legislature of the State of Colima, were in a
position to initiate the legislative process to rectify the contents of
unconstitutional precepts, particularly that relating to the term of one
month contemplated in the second paragraph of Article 25, of the local
Electoral Code.
Ruling P./J. 56/2006, ib., p. 688.
Ruling P./J. 55/2006, ib., p. 687.
220
Ruling P./J. 57/2006, ib., May 2006, p. 1015.
218
219
Unconstitutionality of Articles 55, paragraph
two, and 57 of the Constitution of the State of
Colima
Unconstitutionality Dispute 28/2005. Partido de la Revolución
Democrática. November 15, 2005. Opinion delivered by Justice Olga
Sánchez Cordero de García Villegas.
The plaintiff party adduced that Article 55, second paragraph, and
Article 57 of the Constitution of the State of Colima, violated Articles
14, 16, 17, and 41 of the Federal Constitution. In relation to Article 55,
second paragraph, of the Constitution of the State of Colima, the
plaintiff indicated that, in conformity with the terms established for
the promotion, processing, and resolution of electoral resources (both
local and federal), the one-month term contemplated in such precept
to hold extraordinary elections for governor impedes the cited recourses
from culminating in time to adequately print the ballot slips to be used
in the extraordinary polling day, meaning that it does not adequately
adhere to the chain of challenge for each one of the acts issued for the
preparation and development of the election, and to the system of
nullities.
The bench of the Supreme Court indicated that the respective
invalidity concept was essentially valid because the one-month term
cited in Article 55, second paragraph, does not constitute a reasonable
period to prepare and hold the polling day, in the case of the
extraordinary election for governor, considering that in order to hold
a vote for a public position within a tight margin of thirty days
established under the norm, it is impossible to grant the political actors
in such vote the opportunity to challenge the various acts of preparation
427
428
RELEVANT DECISIONS
liable to be subject to appeal. Thus, the High Court declared the
invalidity of Article 55, second paragraph, of the Political Constitution
of the Free and Sovereign State of Colima, because it violated
subparagraph e) of Section IV of Article 116, of the Federal Constitution.221
With regard to the unconstitutionality of Article 57, of the Constitution
of the State of Colima, instituted by the plaintiff on the basis that, in
conformity with the terms established for the promotion, processing,
and resolution of the electoral recourses, both at local and federal
levels, and instituted with respect to the extraordinary election for
governor, the two-month term contemplated as a maximum for the
duration for the naming of the interim governor, does not permit such
recourses from culminating prior to the date on which the governor
elect is to take possession, meaning that it does not adequately abide
by the challenge chain and system of nullities, the Court maintained
that, because the election process for the position of governor of the State
of Colima is a process comprised of interconnected stages, the
declaration of invalidity in Article 55, second paragraph, of the Constitution
of such state, violates the two-month period established under Article
57 of such regulations, in its normative portion relating to the one month
in which to hold the election, given that the consequent extension to
be made in fulfillment of the final decision in the unconstitutionality
proceedings would render insufficient the two-month term for the
culmination of the extraordinary electoral process, with prior resolution
of the means of challenge contemplated under state and federal
electoral laws, against the acts issued during the electoral process.
Therefore, because it had the same unconstitutionality error 222 than
numeral Article 55, second paragraph, of the Constitution of Colima,
and because of the disregard for subparagraph e) of Section IV of Article
116, of the Federal Constitution, the invalidity of Article 57 of the
Constitution of the State of Colima, was declared valid in the normative
part that reads "not exceeding the interim term of two months".223
Ruling P./J. 33/2006, ib., February 2006, p. 1174.
Ruling P./J. 32/2006, ib., p. 1169.
223
Ruling P./J. 34/2006, ib., p. 1175.
221
222
Minors are entitled to request the presentation
of expert DNA genetic evidence to know their
genetic origin and prove the identity of their parents
Amparo under review 1166/2005. November 16, 2005. Opinion delivered
The First Chamber of the Supreme Court advised that the litis in this
matter was limited to analyzing the constitutionality of Article 5,
Subsection B), subparagraph III, of the Law for the Rights of Boys
and Girls in the Federal District (LDNNDF), as well as Articles 278 and
279, of the Code of Civil Procedures for the Federal District (CPCDF).
In its decision, the Chamber firstly pronounced itself on the alleged
violation of constitutional Article 122 by Article 5, subsection B),
subparagraph III, of the LDNNDF. In this respect, the First Chamber
established that, in terms of subparagraph C, First Guideline, Section
V, subparagraph h), of constitutional Article 122, the Legislative
Assembly was empowered to legislate on matters of a civil nature,
making it evident that such Assembly acted in exercise of its constitutional
authority upon issuing the LDNNDF.
The Court immediately referred to the alleged violation by Article
5, subsection B), subparagraph III, of the LDNNDF, of Articles 1, 14,
and 16 of the Federal Constitution, by establishing that the boys and
girls of the Federal District may request and receive information on
their background, identity of their parents, and know their genetic origin
by means of a molecular genetic test of deoxyribonucleic acid (DNA)
performed on their progenitors against their will, without establishing
429
430
RELEVANT DECISIONS
any limitation whatsoever and authorizing the practice of investigation
on the intimacy of persons.
In this regard, the Court resolved that Article 5, subsection B),
subparagraph III, of the LDNNDF, did not violate the norm retroactivity
guarantee of the laws, given that it had not sought its application to
events occurred prior to its entry into effect. As a matter of fact, the
LDNNDF was published in the Official Gazette of the Federal District
on January 31, 2000, while the writ by means of which the Article
under challenge sought to be applied to the plaintiff was dated
September 22, 2004. Likewise, the First Chamber established that the
hearing guarantee was not affected either because the Article under
challenge only contemplates a subjective right held by all minors to
the identity, legal certainty, and family, and at no time are the citizens
who resort to proceedings before a State body previously established
limited in any way. Moreover, the Chamber observed that, although
the Article challenged and the LDNNDF do not contemplate a hearing
for the parties to be able to dispute the molecular genetic expert proof,
this does not mean that its unconstitutionality should be declared for
violating the hearing guarantee, for such guarantee is duly guaranteed
in the CPCDF, an applicable regulation in ordinary civil lawsuits.224
The First Chamber concluded that neither had the exact
application guarantee of penal law been violated by the contents
of the Article under challenge, given that the case at hand was not
considered a penal controversy. Moreover, the civil legality guarantee
was not compromised by Article 5, subsection B), subparagraph III, of
the LDNNDF, either because the latter does not establish a termination
to the guarantee that the civil lawsuit should resolved based on the
law, its interpretation or on the general principles of law.
The plaintiff also adduced that the practice of expert molecular
genetics proof violated constitutional Article 22. However, the Chamber
clarified that such proof only implies the practice of chemical studies
and laboratory studies of organic tissues belonging to the persons on
which such test is made in order to determine the correspondence of
the DNA to allow to determine whether there is a parental consanguinity
link and to clarify controversies of paternal recognition meaning that
this does not constitute a penalty as contemplated under constitutional
Article 22.
224
Ruling 1a. CCXVIII/2005, ib., January 2006, p. 737.
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On the other hand, the argument that Article 5, subsection B),
Section III, of the LDNNDF, violates constitutional Article 1, was
declared groundless by the First Chamber, given that the scope of the
Article under challenge is to ensure that girls and boys have a right to
identity, legal certainty, and family, for which it is possible to request
and receive information on the origin, genetic origin, and identity of
their respective parents, meaning that this is not tantamount to the
existence of inequality, discrimination or conducts of slavery.
The First Chamber established that Article 5, subsection B),
Section III, does not go against the intimacy of persons because it
does establish limitations as its text infers that the information obtained
is for purposes of ensuring that the minor knows his or her genetic
origin, and not to reveal the medical conditions or conducts of his or
her respective parents. The Chamber added that, although it is true
that the Article under challenge grants minors the right to request and
receive information on their genetic origin and of the identity of their
parents, this does not contemplate the correlative obligation of
the supposed progenitors to submit themselves to the practice of the
aforementioned expert tests; so much so that Article 382 of the CCDF,
establishes that, should the assumed progenitor refuse to provide the
necessary sample, such individual will be assumed to be the mother
or father of the child unless there is proof to the contrary.225
225
Ruling 1a. CCXVII/2005, ib., p. 736.
431
Determination of the moment the offense of
carrying a gun is materialized
Collegiate Court of Circuit 20 and the First Collegiate Court of Circuit
Twenty-nine. November 16, 2005. Opinion delivered by Justice
Sergio A. Valls Hernández.
The Second Collegiate Court of the Twentieth Circuit, upon resolving
amparos proceedings for criminal purposes, maintained that any person
who keeps a weapon within reach is guilty of carrying a firearm and
that this is considered to occur when a gyratory movement of the body
is required to dispose of such weapon or whenever greater effort is
required, provided it is not necessary for the individual to alight the
vehicle to achieve purposes. The Court considered that whenever
the latter occurs, the offense of possessing a firearm and not of carrying
a firearm, is taken to occur. The Court further affirmed that it is not
only the act of carrying a firearm under the copilot’s seat that constitutes
the offense of carrying a firearm but also whenever such weapon is
deposited in the cabin of the vehicle and it can be expressly demonstrated
that, even with difficulties, the driver may make use of such a weapon,
having such an intention when carrying the weapon in a place in the
vehicle in which the passengers travel. This is not deemed to occur in
cases when the weapon is located in the trunk of the vehicle because
the individual is necessarily required to alight the vehicle to make use of
such firearm.
For its part, the Second Collegiate Criminal Court of the Third
Circuit maintained that the offense of carrying a firearm for the exclusive
use of the Army, Navy, and Air Force is taken to exist whenever such a
433
434
RELEVANT DECISIONS
weapon is carried in any part of a manned vehicle, and it is easy to
access the weapon, without it resulting transcendent whether the alleged
offender needs to make any maneuvers in order to reach the weapon
for, even in the case that the individual is required to alit the vehicle
and open the trunk of the car to reach the weapon, what is certain is
that such action in no way favors the restitution of security or tranquility
of the collective in general, or of the legal property protected by certain
regulations, if by being within the material sphere of the individual,
the latter may make use of such weapon should he eventually decide
to do so. Consequently, it was concluded that for the offense of carrying
a firearm without possessing a license to be deemed to exist, or for
carrying a weapon whose use is reserved for the armed institutions of
the country, in instances whereby weapons are seized from the
perpetrator in his vehicle, it is necessary to grant the expression "to
carry" an extensive content which implies "bearing", interpreted in the
sense that it suffices to have easy access to such weapon regardless of
the part of the vehicle in which it is located in order for the penal
infraction in question to be taken to exist, considering that "to bear"
should simply be understood in the sense that the individual may
dispose of the firearm in a determined moment.
Finally, and in similar terms as the second of the aforementioned
courts, the First Collegiate Court of the Twenty Ninth Circuit determined
that, in the case of the offense of carrying a firearm, the expression "to
carry" should be given an extensive interpretation meaning "to bear",
in the sense that it suffices for the weapon to be within easy access
regardless of the part of the vehicle in which it is located and that,
consequently, the subject may dispose of such an instrument in a
determined moment independently of the number of movements
required to carry out such an action. The Court determined the above
based on the consideration that the juridical good protected by the
type of offense in question is not only the abstract the threat to life and
to the welfare of individuals but also peace and public safety, which is
why the opinion was reached that the offense of carrying a firearm
is taken to exist in the event that the individual has such a weapon
within his immediate radius of action and sphere of availability.
Having analyzed the above considerations, the First Chamber
of the Supreme Court determined the existence of contradictory
rulings between those put forward, on the one hand, by the Second
Collegiate Court of the Twenty Ninth Circuit and by the Second Collegiate
Criminal Court of the Third Circuit and the First Collegiate Court of the
Ninth Circuit and ruled that, in order to arrive at a resolution, two issues
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required examination, as follows: a) if, in cases when the individual
is required to alight the vehicle in order to have access to the firearm
as a result of being located in a place other than its cabin, the offense
of carrying a firearm for the exclusive use of the Army, Navy, and Air
Force is deemed to exist, as referred to under Article 83 of the Federal
Firearms and Explosives Law (LFAFE), and b) the scope of the element
constituting the offense of carrying a firearm for the exclusive use of
the Army, Navy, and Bear Force, involving the action of "carrying", so
as to establish whether such offense becomes effective only in cases
where the perpetrator has the weapon within reach or can gain access
to it by means of a directory movement of the body are based on any
greater effort provided that it is not necessary to alight the vehicle to
achieve such an objective or if such an offense is constituted by merely
carrying a weapon in any part of the vehicle.
With regard to the first aspect to be examined, the First Chamber
advised that constitutional Article 10 makes evident two individual
guarantees in favor of the citizens; they are, possessing and carrying
firearms, and indicated that the distinction between the two rights is
made clear by the provision in question. It established that possessing
a firearm should be understood as the right of citizens to keep weapons
on the premises and, by exclusion, it should be understood that a
firearm is carried whenever the citizens carry such weapons to places
other than the home.
Consequently, given the fact that the final decisions issued by the
contending Collegiate Cour ts made it evident that the same
circumstance was present, in the sense that the firearms were found in
the vehicles driven by the defendants, that is to say, a place other than
their respective homes, the offense deemed to exist in each of the
situations was that of carrying firearms and not possessing them.
On the other hand, in terms of the second aspect to be defined,
the Chamber implemented an exercise of historical, logical, teleological,
and systematic analysis to avoid the literal or grammatical interpretation
of the aforementioned expression, and reached the conclusion that
the offense of carrying a firearm cannot be taken to exist merely in the
event that, without an effort greater than that permitted by a gyratory
movement of the body, the individual takes possession of the weapon.
That would be tantamount to conditioning the perpetration of the
offense to the place in the vehicle in which the weapon is kept or to
the effort or movements required from the offender to take control
of the firearm. Thus, the offense of carrying a firearm destined for the
435
436
RELEVANT DECISIONS
exclusive use of the Army, Navy, or Air Force, referred to in Article 83
of the aforementioned regulations, is taken to exist whenever the
weapon is located in any place in the cabin or in any other part of
the vehicle where it could be hidden, regardless of the number
of movements to be performed by the offender to take control of the
weapon.226
226
Ruling 1a./J. 195/2005, ib., February 2006, p. 396
Active authorization permitting the claimant or
victim to institute amparo proceedings is not
limited to cases expressly mentioned under
Article 10 of the related law but also covers alleged
violations of the rights contained in Article 20,
subparagraph B, of the Federal Constitution
Collegiate Criminal Court of the Fourth Circuit and the former
Third Collegiate Court of the Twenty First Circuit. November 16,
2005. Opinion delivered by Justice José Ramón Cossío Díaz.
The First Collegiate Criminal Court of the Fourth Circuit and the former
Third Collegiate Court of the Twenty First Circuit, upon resolving the
respective amparos under review, examined the same legal question:
the admissibility of a guarantees lawsuit when the plaintiff complains
of an offense in light of the reforms of constitutional Article 20, effective
as of March 21 2005, to which a catalog of rights pertaining to the
victim or aggrieved parties are added under subsection B as individual
guarantees, and the contents of Article 10 of the Amparo Law (LA).
However, the jurisdictional organs cited adopted diverging criteria,
the former in the sense that the reforms to constitutional Article 20
generate an extension of the cases whereby a guarantees lawsuit is
admissible whenever a victim or aggrieved party resorts to such article,
or to all those whereby a violation of guarantees is challenged, meaning
that currently the admissibility of the amparo promoted by the aggrieved
party should not be treated as an act regulated exclusively by numeral
10 of the LA, but that it is also necessary to examine the violation of
guarantees and the act contested in light of the legal framework and
the hypotheses which are contemplated under constitutional Article
20, subsection B, and other related sections of Article 114 of the LA,
in favor of the aggrieved party. On the other hand, in the latter case, it
was maintained that the aggrieved party, as a result of the perpetration
of offenses, lacks legitimacy to institute the guarantees lawsuit except
for the assumptions contemplated under Article 10 of the LA.
437
438
RELEVANT DECISIONS
Thus, the First Chamber of the Supreme Court was required to
determine whether the legitimacy of the aggrieved party to resort to an
amparo is limited to the cases indicated under Article 10 of the Amparo
Law or whether, on the basis of constitutional Article 20, subsection B,
such admissibility is extended to other instances in which the violation
of the guarantees contained is challenged.
The First Chamber concluded that, given the refor m to
constitutional Article 20, subsection B, including the addition of a series
of rights with an individual guarantee level in favor of the aggrieved
party or victim of the offense in all criminal processes, such article
must be considered legitimate for purposes of resorting to the amparo
not only in the cases expressly contemplated in Article 10 of the
Amparo Law —yet to be adapted to the aforementioned reform— but
also in cases whereby a law or an act of authority is challenged considered
to be in violation of some of the guarantees incorporated into the
constitutional text by means of the aforementioned reform.227
The Chamber based its analysis on Articles 103 and 107, of the
Federal Constitution, which make it evident that the amparo
proceedings are aimed at protecting individual guarantees —including
those in the aforementioned constitutional Article— whenever these
are violated by an act of authority and are detrimental to the citizen,
and that the holder of such guarantees who suffers a personal and
direct grievance is entitled to request the amparo.
Thus, the Chamber added that, in accordance with the principle
of constitutional supremacy, the secondary provisions must be
interpreted by the constitutional control organs in conformity with that
established in the Constitution, without any possibility of contradiction,
for that established in such law must prevail over the secondary law.
The First Chamber emphasized that that indicated must be
interpreted without detriment to the amparo proceedings instituted by
the aggrieved party or victim of the offense in the aforementioned
cases, in the sense that it might result invalid as a result of some
constitutional or legal provision.
227
The admission and presentation of oral evidence
by minors at the divorce proceedings involving
their parents constitutes an act that is impossible
to repair; consequently, indirect amparo
proceedings are admitted against the parents
Collegiate Civil and Labor Court of Circuit Seventeen and the
Fifth Collegiate Civil Court of Circuit Three. November 16, 2005.
Opinion delivered by Justice José Ramón Cossío Díaz.
As a result of the contradictory rulings issued by the contending courts,
the First Chamber of the Supreme Court concluded that there was a
contradiction of rulings, given that both courts tackled the study of
cases whereby oral evidence was offered by the young children of the
spouses that were parties in a divorce proceeding. In both cases, such
evidence was admitted, and such admission was the act contested in
indirect amparo proceeding instituted by the spouse against whom
such evidence was presented. Moreover, in both cases it was alleged
that the evidence should not be presented because it could cause
psychological damage to the minors. Likewise, in the two cases, the
District Judge was of the opinion that the amparo proceedings were
inadmissible because the alleged act was not impossible to repair and
that studied by the Collegiate Courts was the legality of such a decision.
In this sense, the two contending Courts resolved as to whether it
is possible to have a final decision whose execution is impossible to
repair and that admits oral evidence by the young offspring of the
spouses that were the parties in a necessary divorce suit, and,
consequently, whether an indirect amparo against it is admissible or
not. Nevertheless, the Second Collegiate Civil and Labor Court of the
Seventh Circuit was of the opinion that such evidence may not be
439
440
RELEVANT DECISIONS
considered impossible to repair, meaning that the indirect amparo
against it is admissible. The Fifth Collegiate Civil Court of Third Circuit,
on the other hand, concluded that against such an admission, the
indirect amparo is admissible because it can bring damages impossible
to repair.
Thus, the problem faced by the First Chamber in these
contradictory rulings was whether the resolution that admits the oral
evidence of the young children of the spouses that are parties in the
necessary divorce proceedings, constitutes an act that is impossible to
repair and, consequently, whether an indirect amparo proceeding
against it is admissible or not.
The First Chamber resolved the doubt with its own criterion, in
the sense that, if consideration is given to the psychological health of the
minors, this is a right protected by Article 4 of the Federal Constitution
and by the Convention on the Rights of Children, entered into by the
Mexican State and published in the Federal Official Gazette on January
25, 1991, it is then obvious that this right constitutes an individual
guarantee and a substantive right, whose protection is the obligation
of the State in terms of all acts performed with respect to minors, meaning
that any other act in the proceedings that could affect their mental
health must be considered an act impossible to repair.
Thus, the admission and order to present the oral evidence by
the minors on the facts substantiated the necessary divorce of their
parents, can cause damage to the psychological health of such minors,
because they are required to declare on matters such as family violence,
infidelity, abuse, threats, etc., which in turn means that, even in the case
that a sentence guaranteeing the rights is dictated, the damage suffered
by presenting the evidence does not disappear and cannot be
restituted in the exercise of their mental health. Therefore, the mere
admission of evidence of this nature must be considered an act
impossible to repair for purposes of evaluating the admissibility of an
indirect amparo proceeding, which may be exceptionally instituted by
a minor in terms of Article 6 of the Amparo Law, without being
necessary to prove damage of such nature in the documentation
pertaining to the original trial while the mere possibility of that occurring
suffices.
The crime of rape is admitted between offender
and claimant even if a marital bond exists
Miscellaneous 9/2005-PS. Request for the over ruling of ruling 1a./J.
10/94, derived from resolution to opposite rulings 5/92, between the
First and Third Collegiate Courts of the Sixth Circuit. Petitioner:
Second Collegiate Criminal Court of the Second Circuit. November 16,
Villegas.
The Second Collegiate Criminal Court of the Second Circuit requested
the modification of jurisprudential thesis number 1a./J. 10/94, on the
concept VIOLATION BETWEEN SPOUSES, UNDUE EXERCISE OF
A RIGHT. NON-EXISTENCE OF OFFENSE,228 maintained by the First
Chamber —in its previous form— upon issuing resolution to opposite
rulings 5/92, between the Collegiate Courts resident in the City of Puebla
upon analyzing the offense of rape in light of Article 267, of the State
Social Defense Code.
Upon hearing the request made, the Chamber emphasized that,
with the issuance of the final decision from which the thesis under
analysis was derived, it was essentially considered that the crime of
rape did not exist if the spouse imposed normal copulation in a violent
manner given that such behavior represented the exercise of a right
given that one of the purposes of marriage is the procreation of the
species. However, based on the request made, and following a new
analysis, the First Chamber of the Supreme Court was of the opinion
that it was valid to modify the criterion upheld, in order to thus bring
up-to-date its effectiveness —in attendance to the changes experienced
228
Ruling 1a./J. 10/94, Gaceta del Semanario Judicial de la Federación, Octava
Época, No. 77, May 1994, p. 18.
441
442
RELEVANT DECISIONS
by the different elements that served as a basis to uphold it— and
specified that the modification had to be made in accordance with the
substantive penal legislation of the State of Puebla under which said
conduct relating to obtaining copulation with the use of violence is
typified.
In order to demonstrate the reasons why the aforementioned
criterion was to be modified, the Chamber began by drawing attention
to the crime of rape, contained in Article 267, of the State of Puebla
Civil Social Defense Code, specifying that the elements comprising it
are: a) copulation with a person, regardless of their sex, and b) obtaining
such carnal bond by means of physical or moral violence.
Thus, the Chamber inferred that, in order for the crime to exist, it
suffices for the perpetrator to have carnal access to a person of one or
the other sex by means of physical violence or moral intimidation
exercised on the victim, without requiring the description of the offense
to have other objective or subjective elements or for special
circumstances required for the offense to be considered to exist.
Moreover, the Chamber mentioned that at present there is a
generalized consensus as to the fact that the vital interest protected by
the aforementioned type of offense is sexual freedom —which
recognizes the right of free sexual self-determination in human beings—
as well as the fact that the dynamics of the crime of rape presupposes
the absence of consent by the victim, who is forced into an undesired
sexual relation, with any resistance nullified by means of physical or
moral violence.
In these terms, the First Chamber concluded that the crime of
rape contemplated in the first paragraph of Article 267 of the State
of Puebla Social Defense Code may be committed whenever there is
a marital bond between the victim and the perpetrator given that neither
the aforementioned regulations nor the Civil Code of the same State
contain any provision excluding the possible existence of the offense
in question between spouses.
Moreover, the Chamber added that, although the aforementioned
legislation establishes the procreation of the species as one of the primary
purposes of marriage, this cannot be interpreted in the sense that any
spouse may force the other to accept the carnal act under the pretext
that such a bond is for purposes of achieving the aforementioned end,
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443
for, over and above such right, is the right of a person to pronounce
him or herself with respect to his or her sexual freedom and to the free
disposition of his or her body, and also to determine the moment in
which the perpetration of the species is to be consummated, which
constitutes a fundamental right consecrated in the second paragraph
of Article 4 of the Mexican Constitution.
Finally, the Chamber also referred to the fact that Article 326 of the
Civil Code of the Free and Sovereign State of Puebla recognizes
the equality of rights and obligations born of marriage for the spouses,
as well as the fact that provision 454, Sections III, subparagraph d),
VII and XIII, of the same regulations, contemplates the equality and
respect that must govern relations derived from marital bond.
Thus, on the basis of the aforementioned considerations, the
Chamber modified ruling 1a./J. 10/94, to read as follows:
RAPE. THIS OFFENSE IS CONSIDERED TO EXIST EVEN WHEN THERE
IS A MARITAL BOND BETWEEN THE PERPETRATOR AND THE VICTIM
(LEGISLATION OF THE STATE OF PUEBLA). In terms of the first
paragraph of Article 267, of the State of Puebla Social Defense Code,
the offense of rape requires the following to exist: 1. copulation with a
person regardless of their sex, and 2. obtaining such carnal bond by means
of physical or moral violence. The juridical good protected by the
aforementioned penal type is sexual freedom, which recognizes the right
of human beings to free sexual self-determination. However, rape as
defined in the aforementioned legislation establishes no exception in
relation to the condition of the subjects for it to be considered to exist,
as in the case of the existence of some link or relation between them,
and only requires the presence of physical or moral violence in
performing the copulation. Therefore, it should be concluded that
whenever one of the spouses obtains copulation by violent means
—physical and/or moral— the crime of rape is duly considered to exist
regardless of the existence of the marital bond. 229
229
Ruling 1ª./J. 10/94, Semanario Judicial de la Federación y su Gaceta, Novena
Época, t. XXIII, January 2006, p. 658.
The concurrence of multiple homogeneous
criminal offenses of sexual abuse is updated
whenever a variety of behaviors is shown by
the same offender against the victim on
different occasions
Resolution of Opposite Rulings 125/2005-PS. Between the Second
and Eighth Collegiate Criminal Courts of the First Circuit. November
23, 2005. Opinion delivered by Justice José de Jesús Gudiño Pelayo.
Registration number:127
Upon resolution to opposite rulings 125/2005-ps, between the Second
and Eighth Collegiate Criminal Courts of the First Circuit, the First
Chamber of the Supreme Court was required to determine whether
the plurality of the perpetrator’s conduct, committed in a reiterated or
constant manner upon the same victim at different times, and infringing
the same law (sexual abuse), must be considered constituent of the
continuation of a crime, of an actual concurrence of crimes, or of a legal
concept other than those invoked by the courts in conflict.
On the basis of Articles 260 and 261 of the Federal District Penal
Code (CPDF),230 and Articles 260 and 266 Bis of the Federal Penal Code
(CPF), the First Chamber observed that the elements comprising the
crime of sexual abuse are: a) a sexual act, taken to mean any lascivious
sexual act physically performed upon the body of the victim; b) that
the victim is forced to observe or execute acts such as caresses, fondling,
or corporal touching, or whenever the perpetrator forces his victim to
perform such acts, an obligation which may be construed as a lack of
230
Abrogated by the New Penal Code for the Federal District, published in the Federal
Official Gazette on July 16, 2002.
445
446
RELEVANT DECISIONS
consent by the victim; and c) the absence of a direct and immediate
purpose to attain copulation.
The Chamber added that, in the case of a plurality of actions
involving touching carried out by the perpetrator upon the body of
the victim, the crime may be qualified as a continued crime or as the
actual concurrence of crimes for such plurality is characteristic of such
criminal concepts, whose legal nature it is advisable to analyze. As to
the continued crime, the First Chamber considered it indispensable
to consider that each one of the unlawful actions separately constitutes
an autonomous and independent crime. On the other hand, for a crime
to be considered as continued, the unlawful actions must appear to
signify stages of accomplishment towards a common objective; that is,
the various crimes must be carried out progressively until a definitive
purpose is reached.
Nevertheless, the First Chamber indicated that the crime of sexual
abuse cannot be taken to mean that through the commission of each
unlawful act, each on a different date, an additional or final objective
may be reached, justifying the argument that each case of sexual abuse
must be committed structurally, by episodes, or as part of a plan or
project aimed at reaching a diverse goal, thus arriving at the conclusion
that the crime in question is a single crime. Once his purpose has been
fulfilled, the perpetrator has the option of repeating such unlawful act
or not, in no way meaning that his abstinence in any way compromises
the fulfillment of an individual purpose nor can it be maintained that the
performance of the conducts at different moments facilitates the perpetration
of the crime in question.
Based on the above, the First Chamber of the Supreme Court
resolved that the crime of sexual abuse committed on various occasions,
each separate from the other, on the same victim and by a same
perpetrator, cannot be interpreted as the continuation of an offense,
as the subjective element or guiding principle is not updated for each
conduct, consisting of the unit of criminal intention necessary to reach
a diverse conclusion justifying the consideration of such plurality of
conducts as constituent of a single crime.
As for the actual concurrence of crimes, the First Chamber was
of the opinion that, in the assumption under study, the same agent
commits a plurality or reiteration of actions of the same nature but
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executed at diverse moments. However, if each physical contact
perpetrated by the defendant upon the body of the victim is made
without the consent of the latter and with the absence of direct or
immediate intention to attain copulation, it should be ruled that each
occasion when such elements are present must be construed as sexual
abuse, as confirmed by the fact that this crime is instantaneous.
In the opinion of the First Chamber, if the physical contact made
by the perpetrator was verified on diverse dates, then the number of
crimes is equal to the number of occasions in which such contact takes
place. Therefore, in the assumption under study, the crime is one
of sexual abuse of a single person. The First Chamber observed that, if
Article 18 of the repealed CPDF, and the related CPF provision
established that actual concurrence is deemed to exist whenever several
crimes are committed with a plurality of conducts, an actual
homogenous concurrence is also deemed to exist given that the crimes
are of the same nature. 231
231
Época, t. XXIII, February 2005, p. 33.
447
Establishment of the requirements for the refund
of balances payable by the tax authorities
Resolution to Opposite Rulings 164/2005-SS. Between the First
Collegiate Court of the Fifteenth Circuit and the First Collegiate
Court of the Sixteenth Circuit. November 25, 2005. Opinion delivered
The First Collegiate Court of the Sixteenth Circuit considered that the
refund of a favorable balance depends on the authenticity of the commercial
operation whose function is the responsibility of the tax authorities.
The latter may deny such benefit whenever it becomes aware of
irregularities in receipts, the reason being that such refund is not
automatic merely as a result of presenting the receipts and provided
that such receipts contain the information referred to in Articles 29
and 29-A of the Federal Tax Code (CFF). For purposes of the
admissibility of the verification, a prior requirement is that verification
should take place for the refund of the tax depends on its efficacious
in this. It also considered that, in terms of Article 29, of the Federal
Tax Code, the taxpayer that uses tax receipts (for deduction or crediting
purposes) is required to ensure that the information contained in such
receipts is correct and ideal to ensure the related tax benefits. This
should not be understood as being limited to a "simple verification of
the information contained on the receipt", given that on the basis
of such, a right is to be exercised before the tax authorities. It was also of
the opinion that to consider that the taxpayer is only required to ensure
that the receipt in question fulfills the tax requirements would
nullify the powers of verification of the authority and would legitimate
an operation detrimental to the Public Finances by refunding taxes
never actually collected by the tax authorities. Lastly, the Court
449
450
RELEVANT DECISIONS
maintained that this implies "imposing an additional charge" on the
taxpayer using the receipt, given that verifying that the suppliers or
service providers are inscribed with the Federal Taxpayer Registration
Number (RFC) is a duty that is considered a requirement in order to
seek a refund. Although the obligation of registering in such record
belongs to the taxpayer issuing the tax receipt, as does the related
sanction in the case of omission, the observance of that obligation
also falls on the taxpayer that uses the tax receipt when seeking such
benefits.
For its part, the First Collegiate Court of the Fifteenth Circuit was of
the opinion that that established in Articles 29 and 29-A, of the Federal
Tax Code; Article 24, Section III, of the Mexican Income Tax Law
(LISR) and Article 4, Section I, of the Value-Added Tax Law (LIVA),
makes it evident that the taxpayer seeking to make an expense
deductible is only required to verify that the supporting documentation
fulfills requirements relating to the identity and address of the issuing
party and of the party that acquired the good or received the service.
Although it is true that Articles 29 and 29-A, of the Federal Tax Code,
establish requirements that must be fulfilled in the receipts, it is also
true that those who use such receipts are required to verify that such
information is included. This does not include the responsibility of
verifying that the Federal Taxpayer Registration Number (RFC) is
registered, or, that it is registered but cannot be located, or is not subjet
to any suspension of activities. Moreover, the Court was of the opinion
that although the receipts fulfill the requirements established under
Articles 29 and 29-A of the Federal Tax Code, the favorable balance is
accredited and the tax refund is admissible.
The Second Chamber of the Supreme Court observed the existence
of contradictory rulings and determined that it would issue a resolution.
In essence, it resolved that, although it is true that Articles 29 and
29-A, of the Federal Tax Code make it evident that the taxpayer seeking
the deduction or crediting of a tax in particular, is required to ensure
that the name, corporate purpose, and Federal Tax Registration Number
code of the party issuing the expense or purchase receipt coincide, it is
also true that its mere presentation before the Tax Management
Authorities (SAT) does not imply the automatic validity of the deduction
or credit and, if applicable, the refund of the favorable balance
potentially generated. For such purposes, it is also necessary for the
document to be adequate to demonstrate the tax position derived from
a transaction and that it was in conformity with the governing tax
provisions. In fact, in terms of Articles 22 of the Federal Tax Code and
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11 of its Regulations, the tax authorities are required to refund the
respective amounts whenever requested in accordance with the tax
laws. In this sense, a purchase or payment receipt, despite containing
the information referred to in Articles 29 and 29-A of the Code, not
satisfying the legality requirements referred to in numeral 27, obliging
the taxpayer to present registration notices, changes of address and
suspension of activities with the Federal Taxpayer Registration Number,
has no effect whatsoever. It is only through the control of such information
that the tax authorities may be certain that the document to be used to
make the deduction or credit leading to the refund of a favorable
balance are not false, and that it has received the payment of the tax
whose refund is requested.232
232
451
Transitory Article Six, Section II, of the Decree
amending, adding to, and nullifying different
provisions of the Income Tax Law published
in the Federal Official Gazette on December
31, 1988, does not infringe the principle of tax
proportionality
Amparo under review 1344/2004. November 25, 2005. Opinion
The plaintiff alleged that the Sixth Transitory Article, Section II, of the
Decree reforming, adding, and derogating various provisions of
the Mexican Income Tax Law (LISR), published in the Federal Official
Gazette dated December 31, 1988, the subject of the litis, transgressed
to its detriment the guarantee of tax proportionality, by permitting the
deduction of only the smallest of inventories accumulated at December
31, 1986 or 1988, which unduly altered the Income Tax base payable
by the plaintiff, disregarding his actual tax paying capacity.
This argument was considered well grounded by the District Judge.
On the basis of such consideration, the Second Chamber of the Supreme
Court made reference to the change system governed by the transitory
precept in question and determined its scopes. It indicated that Article
22, Section II, and Article 29 of the Mexican Income Tax Law (LISR), in
effect through December 31, 1986, permitted corporations to deduct
the cost of the merchandise alienated and of which the inventory formed
part at the end of the year, from the taxable income, as the related income
was accrued. By means of a decree published in the Federal Official
Gazette on December 31, 1988, Section II of the aforementioned Sixth
Transitory Article was modified in relation to the term allowed for such
deduction, specifying that it would be effective with respect to the
inventories held by the taxpayer on December 31, 1986 or 1988.
453
454
RELEVANT DECISIONS
According to the Chamber, that modification was in accordance
with the complexity implied by determining the taxable base of the
companies by means of a dual system. For such reason, in December
1998, the legislator announced the conclusion of the transition period
originally instituted which had a duration of four years, and in which
different bases coexisted under the names of "Traditional" and "New",
established by means of the reforms Decree of 1986 to the Mexican
Income Tax Law, for the entry into effect of the new base system
as the only regime to determine the taxable base of the companies as
from 1989.
As to the aforementioned double system, the Chamber specified
that it worked as follows: through December 31, 1986, and in
conformity with Article 22, Section II, and Article 10 of the Mexican
Income Tax Law in effect through December 31, 1986, corporations
would deduct the costs of merchandise alienated and of which the
inventory at the year end form part, as the income was accumulated
from the taxable income, free of all limits in terms of the amount of
the inventory, although observing precise rules in terms of the form
of determining the cost of sales. This process corresponded to the
traditional base as in Title VII of the Mexican Income Tax Law, whereby
it was ensured that there was a co-existence within the same period of
tax accrual between both the effect of the income derived from the
sale of the merchandise and the equity decrease produced by the cost
of the merchandise sold.
According to the Second Chamber, the Mexican Income Tax Law
was modified as from the year 1987 to establish the aforementioned
bases, also known as "the new and the extended base" and as "the
traditional base", respectively contained in Titles II and VII. By means
of the new base, the deduction of the cost of merchandise was permitted
as soon as it was acquired without having to wait for the alienation to
be performed. Both bases would coexist for four years and would be
applied jointly to determine the tax of the year. Consequently,
corporations would apply separately the provisions contained in the
two Titles —the traditional base for the inventories existing through to
December 31, 1986, alienated in the period of transition, and the new
base for inventories acquired as from January 1987. In this way,
the joint tax of the year would be the amount resulting from adding the
amounts of tax determined in conformity with each Title in the proportions
specified by the reforms Decree.
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455
The Chamber observed that the entry into force of the new rules
was only verified in two years. In 1987, only 20% of the new base was
considered for tax purposes, while the traditional base was 80%; while
in 1988, the new base increased to 40%, and the traditional base
decreased to 60%. In the Sixth Transitory Article, it was indicated that
whenever corporate entity taxpayers go into bankruptcy or change their
main line of business, in the event of no longer being able to deduct
pending inventories, the smallest of the inventories at December 31,
1987 or 1988, are to be deducted.
In other words, the Chamber continued, the cost of the merchandise
alienated which had not been deducted, would be deducted when the
value of the inventory at December 31, 1988, was recognized (that is
to say, when the taxpayer changed his main line of business or went into
bankruptcy). Updating the aforementioned, the value of both inventories
would be compared in order for the deduction to be valid for the
smallest inventory between 1987 or 1988.
For the Second Chamber, the aforementioned situations became
effective for the plaintiff on May 22, 2000, formalized by means of
writ 55,780, before Notary Public No. 153 of the Federal District,
making evident the partial spin-off agreement of the company Du Pont,
S.A. de C.V. into Du Pont Mexico, S.A de C.V., whereby the former
changed its main line of business from the production of basic-organic
chemical products to the rendering of advisory, administration and
company organization services. The second condition was updated
by means of the complementary income tax return corresponding to
the tax year 2000, for which the deduction of the smaller of the
inventories of the plaintiff, that is to say, the 1986 inventory, was taken
as accredited.
The Second Chamber observed that the inventory corresponded
to 1986 was not frozen, but that part of such inventory was deducted
in 1987 and 1988 to the degree that part of the Income Tax was
calculated in conformity with the traditional base line in those years
(80% of the tax in 1987, and 60% in 1988), in those same proportions,
and this resulted from deducting the pending inventory in question at
the time of obtaining the income whose alienation was yet to be verified.
For its part, the inventory relating to 1988 not only included nondeducted merchandise integrating the inventory at December 31, 1986,
but was also made up of merchandise already deducted in conformity
with the new base, as a result of having been bought in the same year
of 1988, that is to say, at the time of acquisition. The Chamber deduced
456
RELEVANT DECISIONS
that this explained why congress established the deduction of the
smaller of the inventory in the aforementioned lapse.
The Chamber basically resolved whether, upon comparing of the
inventories, the 1988 inventory results smaller than the 1986 inventory;
this is because sales were greater than purchases and, during the
transition period, the purchases were deductible by 20% in 1987 and
40% in 1988, respectively. In contrast, the sales were deducted through
the cost of sales in this same period at 80% and 60%, respectively;
that is to say, there was greater deduction with respect to the inventory
pending at December 31, 1986, for a large part of the merchandise
went out as a result of the sales made. Thus, the smallest of the
inventories —the 1998 inventory— was the inventory deducted for in
that year and it was minimal.
On the other hand, the Chamber observed that the fact that the
inventory of 1988 is greater than the 1986 inventory is due to the fact
that sales in such period were less than purchases and that these were
deducted in the aforementioned percentages, while sales were also
deducted in the percentages mentioned through the cost of sales. Thus,
by not having a lot of sales but making lots of purchases, there is more
inventory due to the larger quantity of merchandise acquired in the
period, already deducted in conformity with the new method. Thus
the smaller inventory to be deducted is that of 1986, and this inventory
is the one considered for such purposes.
In this manner, the authorized deduction reflects the inventory
which the taxpayer is actually entitled to deduct, if consideration is
given to the effects of the transition regime. Thus, far from resulting a
transgression of the principle of tax proportionality, such measure
comes near the actual contributing capacity of the taxpayer granted
the prerogative of deducting the outstanding inventory for it should
not be overlooked that part of the balance at December 31, 1986 was
deducted in the two subsequent years by means of the joint application
of the two coexisting regimes. Likewise, the Chamber recalled that,
correlatively to sales, as from the beginning of the temporary regime,
the taxpayer also acquired new merchandise that comprised his
inventory, which shows that not all the inventory of the period must
be deducted, meaning a double deduction for some products when
verified, which does represent a distortion of the contributing capacity
of the citizen.233
233
Ruling 2a.CXLVII/2005, ib., February 2006, p. 849.
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457
The Chamber established that the proportionality guarantee is
fulfilled given that, whenever the precept under challenge permits the
deduction of the smaller of the inventories at December 31, 1986,
actually pending, the cost of acquisition of merchandise or products in
their exact measure is recognized. Therefore, the Chamber concluded
that the transition system contemplated under the Mexican Income
Tax Law permits the deduction of the cost of merchandise either at the
time of its alienation or as from its acquisition, as established in the cost
systems for sales and purchases of merchandise, raw materials, finished
products, or semi-finished products, effective as of December 31, 2001.
Life imprisonment shall not be deemed a
punishment that goes against national custom
and norms, meaning that, in cases of extradition,
the state requesting compulsory enforcement
of the penalty is not required to commit itself
not to apply it
Request to Over rule Earlier Ruling 2/2005-PL. Justice Mariano
Azuela Güitrón, Guillermo I. Ortiz Mayagoitia, and Sergio A. Valls
Hernández, Justices of the Supreme Court. November 29, 2005.
Justices Mariano Azuela Güitrón, Guillermo I. Ortiz Mayagoitia, and Sergio
A. Valls Hernández requested the modification of the ruling derived
from the resolution to opposing rulings 11/2001-PL, under the concepts
LIFE IMPRISONMENT. REPRESENTS A PENALTY OF THOSE
PROHIBITED UNDER CONSTITUTIONAL ARTICLE 22, 234 AND
EXTRADITION. THE LIFE IMPRISONMENT PENALTY CONSTITUTES
A PENALTY PROHIBITED UNDER ARTICLE 22 OF THE MEXICAN
CONSTITUTION, MEANING THAT, IN ORDER TO PROCESS SUCH
A PENALTY, THE REQUESTING STATE MUST COMMIT ITSELF NOT
TO APPLY SUCH PENALTY OR TO IMPOSE A LESSER PENALTY
ESTABLISHED UNDER THE LEGISLATION.235 The requesting justices
specified that the request for the modification of ruling exclusively
involved the subjects debated in the original dispute; that is, whether
life imprisonment constituted a punishment that goes against national
custom and norms of the type prohibited under the Constitution and
whether, in terms of that contemplated in Section V of Article 10, of
the International Extradition Law (LEI), the State that presents a request
for extradition must commit itself to not apply such a penalty and to
impose a lesser penalty.
234
235
Ruling P./J. 127/2001, ib., t. XIV, October 2001, p. 15.
Ruling P./J. 125/2001, ib., p. 13.
459
460
RELEVANT DECISIONS
In this respect, the Court specified that the main reason considered
to resolve the issue of whether life imprisonment is unconstitutional
was to consider that it represented a punishment that goes against
national custom and norms prohibited under Article 22 of the General
Constitution, in correlation with Article 18 of the Constitution, in
conformity with the fact that the life imprisonment sentence has always
had a determined limit in Mexican legislation and that, by not being
aimed at the readaptation or reintegration of the offender into society,
it does not comply with the ends sought by such penalty. Thus, based
on such a determination, the Supreme Court considered that, bearing
in mind that that established in constitutional Article 15 does not permit
the signing of treaties which, among other things, alter the guarantees
and rights established under the Federal Constitution, the extradition
requests —in case the offense for which they are granted was penalized
in the requesting country by means of life imprisonment— could not
be granted unless the requesting State undertook, in accordance with
Section V of Article 10, of the LEI, to impose a lesser penalty.
However, based on a new analysis of the subject, the bench of the
Supreme Court, determined that it resulted inadmissible to modify
the criteria upheld by it. 236
To support such a determination, the Court maintained that the
sentence of imprisonment represents a restrictive sanction by means
of which the individual is deprived of his liberty of movement and is
kept confined in an establishment designed for such specific purposes,
in order to receive his punishment, his segregation from the social environment
while such isolation lasts, and his readaptation into social life eliminating
the danger represented by the offender. It also represents the central
nucleus of the Mexican penitentiary system which is why the Court
considered that the imprisonment penalty is not one of those prohibited
in Article 22 of the Mexican Constitution, in its generic concept.
Likewise, it affirmed that the life imprisonment sentence does
not denaturalize the penalty reflected by its name but refers to the
application aspect; that is to say, that a constitutionally accepted penalty
is to be applied for a term equal to the duration of the offender’s life,
implying that the penalty continues to be the same —the privation of
236
Justices Genaro David Góngora Pimentel and Mariano Azuela Güitrón wrote
dissenting opinions while Justice Sergio Salvador Aguirre Anguiano wrote his own
concurring opinion.
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the liberty of movement— and that it only varies in terms of its duration.
It was thus concluded that in principle, it is not possible to consider
that it should be qualified as a punishment that goes against national
custom and norms or cruel and, thus, as prohibited by Article 22 of the
Mexican Constitution.
On the other hand, it added that the concept of the punishment
that goes against national custom and norms referred to in constitutional
Article 22 must be limited to three assumptions: a) that its object is to
create pain or physical alteration in the body of the offender; b) that it
is excessive in relation to the offense perpetrated, that it does not
correspond to the finality sought by the penalty or that its determination
is left to the arbitration of the judicial or executing authority as a result
of not being contemplated under any law exactly applicable to the
offense in question; and, c) that it is used in a determined place while it
is not used in other places for it is rejected in the majority of penitentiary
systems.
Having indicated the above, the Court established that the fact
that life imprisonment does not bring as a consequence a reflection of
the readaptation potentially undergone by the offender into society
given that the latter will not re-enter the social nucleus does not
determine that it should be considered an a punishment that goes
against national custom and norms for the Constitution does not
establish that a penalty’s only and necessary consequence should be
the readaptation of the offender and that the latter, once rehabilitated,
should be reintegrated into the social nucleus and less still, that such
consequences should be achieved with the application of all penalties
in general. In addition, the Constitution did not establish any limit
whatsoever with respect to its application.237
The bench of the Supreme Court, subsequently referred to Article
10, Section V, of the LEI, which establishes the requirement to grant
extradition in cases whereby the offense allegedly attributable to the
individual is punishable by the death penalty or by one of the penalties
prohibited by Article 22, of the General Constitution of the Republic,
only if the requesting State undertakes to impose the penalty of
imprisonment or any other less severe penalty prescribed under its
legislation, either directly or by substitution or commutation. The Court
established that, taking the considerations exposed as a basis for this
237
461
462
RELEVANT DECISIONS
legal provision, as well as that maintained by the Supreme Court, upon
resolving unconstitutionality proceedings 20/2003,238 with regard to
whether the life imprisonment penalty is not prohibited by constitutional
Article 22, in cases where an extradition is requested and the offense
attributed to the defendant is punishable under the legislation of the
requesting State with a penalty up to life imprisonment, Mexico should
not demand that such State undertake not to impose such a penalty
or to apply a lesser penalty.239
238
239
Ib., June 2006, p. 813.
Ruling P./J. 2/2006, ib., February 2006, p. 5.
DECEMBER
2005
The governor of the State of Baja California
lacks the constitutional and legal authority to
reduce the expenses budget prepared by the
Electoral Court of the Judiciary of that State,
and it should not be lower than the budget of
the previous year
Constitutional dispute 10/2005. Judiciary of the State of Baja
California. December 8, 2005. Opinion delivered by Justice Sergio
Salvador Aguirre Anguiano.
In constitutional dispute 10/2005, the Judiciary of the State of Baja
California challenged the act by the Governor of the state, consisting
of the alteration and/or modification of the draft disbursements budget
for the 2005 tax year, presented by the Electoral Court of the local
Judiciary, and demanded the invalidity of Article 4, of the Disbursements
Budget of the State for the aforementioned year, only in that relating
to the aforementioned Court.
In its first resolution, the bench of the Supreme Court, in plenary,
after citing thesis ruling, 240 by means of which it established that, in
keeping with the finality of the constitutional dispute, its legal protection
and harmonization with Articles 40, 41, and 49, in relation to Articles
115, 116, and 122, of the Federal Constitution, among others, the
Legislature, Executive and judiciary of the State are legitimately
empowered to promote this, but not its related organs because they
do not qualify under one of the assumptions mentioned in Section I of
constitutional Article 105, concluded that because, in conformity with
Article 2, Section VI, and Article 244, first paragraph, of the Judiciary
Law of the State of Baja California, the Electoral Court is an organ
240
Ib., t. VIII, December 1998, p. 790.
463
464
RELEVANT DECISIONS
derived from such Power, it results evident that its Chief Justice lacks
the act of legitimacy to represent the latter in the indicated constitutional
means of control. Article 57, third paragraph, of the local Constitution,
specifies that the representation of the Judiciary of such entity is the
responsibility of the Chief Justice of the Court of Justice.241
In fact, indicated the Court, Article 57, paragraph three, of the
Constitution of the State of Baja California, makes it evident that
the Chief Justice at the Supreme Court of Justice of the state is the
representative of the local Judiciary. Thus, in conformity with Article
11, first paragraph, of the Regulatory Law of Sections I and II, of
Article 105, of the Mexican Constitution, he has active legitimacy
to file the constitutional dispute in defense of the interests of the
aforementioned Power and its integrating organs, including the Electoral
Court, given that in conformity with Article 2, Section VI, and Article
244, first paragraph, of the Judiciary Law of the State, this Court makes
up such Power.242
Moreover, the Court, resolved that by establishing that the
publication of the disbursements budget must comprise the analysis of
branches, programs and items, Article 30, second paragraph, of the
Budget, Accounting, and Public Expenses Law of the State of Baja
California, does not violate the principle of division of powers in the
local sphere contemplated in Article 116, first paragraph, of the Mexican
Constitution. The systematic interpretation of the aforementioned article
with numerals 90, first paragraph, of the local Constitution; Articles 16,
17, first paragraph, Articles 33, 43, Section II, first paragraph, and
Article 48, last paragraph, of the aforementioned Law, make it evident
that such technical requirements do not represent an authorization for
the Legislative and Executive Powers to invade the sphere of authority
of the Electoral Court of the Judiciary of the State of Baja California.
Consequently, it was not invading the sphere of power of the judiciary
itself, given that it does not empower the determination of the form in
which such Court must make its disbursements and manage its budget.243
Likewise, the Court, indicated that constitutional Article 16, first
paragraph, contemplates the principle of legality in conformity with
241
Época, t. XXIV, July 2006, p. 824.
242
Ruling P./J. 66/2006, ib., t. XXIII, May 2006, p. 1377.
243
Ruling P./J. 68/2006, ib., p. 1378.
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465
which the State authorities may only act when permitted under the law
and in accordance with the form and terms determined under such
law, a principle retaken in precept 97 of the Constitution of the State
of Baja California, according to which government officials have no
other authority than those expressly granted under the laws. In conformity
with Articles 22, second paragraph, and 27, Section I, of the Budget,
Accounting, and Public Expenses Law of such State, the Judiciary of
the state is to prepare its own draft budget, which will be presented
to the head of the Executive by means of the Planning and Finances
Secretariat, to be sent to the Local Congress. Moreover, in accordance
with precepts 249, Section XVII, and 253, Section XXIX, of the Judiciary
Law of the State, the approval of the final draft of disbursements budget
and the agreement presented before the Chief Justice at the Supreme
Court of Justice of the State are powers that are exclusive to the
Electoral Court. Therefore, it was evident that the Governor lacked
the authority to modify or reduce the draft disbursements budget
presented by the Electoral Court of the Judiciary of the state, given
that it acts exclusively as a means of remitting such document to the
local Legislature. 244
The Cour t, also determined that Article 116, Section IV,
subparagraph c), of the Federal Constitution, establishes that Constitutions
and the laws of the States must guarantee that the authorities responsible
for organizing the elections, and the judicial authorities that resolve
the related disputes, should enjoy functional autonomy and decisive
independence for electoral purposes. Furthermore, in keeping with
such provision, the second paragraph of Article 90, of the Constitution
of Baja California, contemplates that in order to guarantee the
economic independence of the Judiciary, the latter must have its own
budget, which it is to administer and exercise in accordance with the
terms established under the respective laws, and which may not be
less than that approved by the Congress for the previous year. According
to the Court, an interpretation of the aforementioned precepts leads to
the conclusion that the Electoral Court, an organ integrating the
Judiciary of the State of Baja California, has guaranteed budgetary
irreducibility in the sense that it is not possible to legally establish a
budget that is lower than that approved for the previous regular year,
for this is a determination aimed at protecting its autonomy, safeguarding
it from any pressure that world finder it from duly complaying with the
powers entrusted by the Federal Constitution.245
244
245
Ruling P./J. 69/2006, ib., p. 1476.
Ruling P./J. 70/2006, ib., p. 1477.
A claimant in administrative proceedings
against noncompliance duties of a public
official lacks the standing to object by means
of amparo proceedings against the resolution
declaring such complaint as not enforceable
and Fourth Collegiate Administrative Courts of Circuit One.
December 9, 2005. Opinion delivered by Justice Guillermo I. Ortiz
Mayagoitia.
In order to confirm whether opposite rulings exist, the Second Chamber
of the Supreme Court sumarized the essential considerations that
supported the decisions issued by the Second and Fourth Collegiate
Administrative Courts of the First Circuit.
Upon resolving appeal review 133/2005, the Chamber found that
the Second Collegiate Administrative Court of the First Circuit, confirmed
the dismissal of an amparo proceeding instituted against the resolution
dictated by the deputy-controller of Liabilities at the Federal District
Board of Arbitration Local Assembly, in which the filing of the
administrative complaint presented by the plaintiff against an official
assigned to the Special Board Number Five of the Federal District Board
of Arbitration, was ordered.
The Second Collegiate Administrative Court of the First Circuit
confirmed the dismissal of the proceedings by considering that the
plaintiff, the claimant in the administrative suit, had no legal standing
because this was not an appeal or the challenge of an administrative
act seeking its revocation or modification, but of a means of internal
control aimed at investigating the conduct of government workers and
sanctioning them whenever failure to comply with their obligations is
proven. No private interests are protected but rather, public interests,
467
468
RELEVANT DECISIONS
for the resolution of an administrative suit does not represent a benefit
or a direct detriment for the party responsible for its presentation.
Moreover, the Second Chamber observed that, upon resolving
appeal for review 994/95, the Fourth Collegiate Administrative Court of
the First Circuit, revoked the writ dismissing the amparo proceedings by
considering the resolution of the Director of complaints and claims of
the Controllership and Administrative Development Secretariat, who
filed as a closed matter an administrative complaint prepared in terms
of Articles 47, 49, 50, and 77 Bis, of the Federal Government Workers
Responsibilities Law (LFRSP), did affect the legal interests of the plaintiff.
This in because the authorities are required to issue a duly grounded
and motivated resolution in compliance with Article 16, of the Federal
Constitution, and to inform the result of its investigations and processes
and not to limit itself to indicating that the complaint was invalid.
Therefore, the Second Chamber concluded that there was a
contradiction between the rulings issued by both Collegiate Courts,
given that they reached different conclusions with respect to the
following legal question: whether the plaintiff in an administrative
complaint in terms of the LFRSP, has a legal interest to institute amparo
proceedings against the resolution ordering the filing of the matter, as
a result of the complaint being considered inadmissible or that no
elements exist to determine the liability of the government worker.
The criterion of the Second Chamber prevailed as jurisprudence,
basically indicating that, in conformity with Articles 49 and 50, of the
LFRSP, any person is legitimately empowered to file complaints and
claims relating to the noncompliance of obligations of government
servants, by means of which the related disciplinary proceedings are
initiated. All things considered, given that the essential purpose of the
related liabilities regime does not involve safeguarding private interests
by means of a sanctioning procedure, but to preserve an optimum
benefit of the government worker in question, the objective legal order
confers an individual a mere power to present complaints and claims
relating to the noncompliance of obligations of government workers,
without being able to require from the authorities a determined conduct with
respect to its claims. There is no legal standing to challenge by means
of an amparo a resolution ordering the filing of documentation for
being irrelevant to the claim or because there are not sufficient elements
to attribute administrative responsibilities.246
246
The Chambers of the Supreme Court have the
jurisdiction to resolve constitutional disputes
even with respect to matters of law whenever
they involve the intervention of a municipality
and the unconstitutionality of a general is not
challenged
Constitutional dispute 38/2005. Municipality of Mama, State of
Yucatán. December 9, 2005. Opinion delivered by Justice Genaro
David Góngora Pimentel.
The Second Chamber of the Supreme Court, upon hearing the
constitutional dispute instituted by the president and secretary of
the Municipality of Mama, State of Yucatán, determined the cases in
which the Chambers of the Court have the authority to resolve
even with regard to fundamental matters in the case of constitutional
controversies. 247
Thus, in the case at hand, the Chamber indicated that, in conformity
with that established under Article 105, Section I, subparagraph i), of
the Mexican Constitution, and Article 10, Section I, of the Federal
Judiciary Law; as well as in relation to point four relating to Section I
of point three, of General Agreement 5/2001,248 issued by the bench of
the Court, on June 21, 2001, it was empowered to hear the controversy
presented given that the intervention of the bench of the Court, was
unnecessary.
In order to reach the above conclusion, the Chamber took into
consideration that under Article 94 of the Federal Constitution the
Ruling 2a. V/2006, ib., February 2006, p. 1541.
Cfr. La descentralización en la impartición de justicia federal. Serie El Poder
Judicial contemporáneo, No. 4, México, Suprema Corte de Justicia de la Nación, 2006.
247
248
469
470
RELEVANT DECISIONS
Court may distribute the cases before it between the Chambers in order
to hasten their processing and to ensure an improved dispensing of
justice. Moreover, one of the purposes of the aforementioned agreement
is that the bench of the Court, should destine its efforts to the matters
of greater importance and impact for the national legal system.
In light of the above, the Chamber concluded that Section I of
point three of General Agreement 5/2001 should be interpreted in the
sense that the bench of the Court, should resolve constitutional
controversies, actions of unconstitutionality, and related cases whenever
its intervention is necessary and it results necessary to evaluate and
submit the prudent arbitration of each one of the Chambers in each
case. Although the aforementioned agreement has been interpreted in
the sense that the chambers are to arbitrate constitutional controversies
and unconstitutionality actions whereby their dismissal is determined,
as well as the cases brought forward in these means of constitutional
control, this does not mean that the legal assumptions of the agreement
are limited to those cases. An undetermined legal concept was deemed
to have been used which leaves to the Chambers the prudent
establishment of its contents and extension.
The Chamber pointed out two evident facts: a) the bench of the
Court has such accumulation of casses pending that their prompt
resolution is impeded for priority is given to matters of national relevance
while decisions relating to smaller problems that are important for
a Municipality are on occasions postponed; and, b) it is precisely the
Municipalities that file more constitutional controversies in order to
resolve their problems. In light of the aforementioned, and taking
into consideration the imperative contained in Articles 17 and 94,
of the Mexican Constitution, of providing prompt and complete justice,
the Second Chamber concluded that, it has the authority to resolve
constitutional disputes in application of the aforementioned General
Agreement, even with respect to the substance of matters, provided
that the following conditions are applicable:
a)
That the constitutionality of some general norm is not challenged
for jurisdiction would otherwise pertain to the bench of the Court,
while the resolution of these matters requires the existence of a
qualified quorum as demanded by Article 42, of the Regulatory
Law of Sections I and II of Article 105 of the Federal Constitution,
for the invalidity of the general norms invariably requires at least
eight votes.
b)
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That the constitutional dispute is one of those contemplated under
subparagraphs b), f), g), and i) of Section I of constitutional Article
105; that is to say, of conflicts involving the intervention of a
Municipality.
471
It is admissible to grant a stay in amparo
proceedings contesting the declaration of
compliance in favor of requiring members
of the Mexican Army and Air Force to stop
rendering professional services due to illness
Resolution to Opposite Rulings 166/2005-SS. Between that upheld
by the First, Fifth, Seventh, and Eighth Collegiate Administrative
Courts of the First Circuit. December 9, 2005. Opinion delivered by
Justice Margarita Beatriz Luna Ramos.
The First and Fifth Collegiate Administrative Courts of the First Circuit,
by resolving incidents under review No. RA. 551/2000 and RI. 274/2002
through unanimous vote granted the plaintiff a stay of the act contested,
which took the form of a declaration supporting the legality of forcing
a member of the Mexican Army to retire as a result of having acquired
the HIV virus. The First Collegiate Administrative Court of the First
Circuit maintained that any such individual should not be "...impeded
from continuing to render services in the form and terms required prior
to the retirement notification contested unless such individual is
physically incapable of rendering such services at that date". The second
of the aforementioned courts indicated that "...the act contested should
be executed, and the individual should be allowed to continue carrying
out the duties pertaining to his position, and should also continue
to obtain due economic remuneration for services rendered". The
aforementioned Collegiate Courts reached their decision based on their
understanding that the requirements of Article 124, section II, of the
Amparo Law (LA) had been fulfilled, for the definite stay granted in
the terms mentioned above was in no way detrimental to the social
interest and did not represent a violation of the public order.
On the other hand, by unanimous vote in proceedings under
review 847/2003 and 446/2004, respectively, the Seventh and Eighth
473
474
RELEVANT DECISIONS
Collegiate Administrative Courts of the First Circuit denied the plaintiff
a stay of the act contested, as indicated in the paragraph above, on
the grounds that the measure requested was inadmissible because it
contravened public order regulations and undermined social interest,
in violation of that prescribed under Article 124, section II, of the LA.
The Second Chamber of the Supreme Court observed that there
was in fact contradictory rulings, given that the Collegiate Courts had
analyzed an equal legal issue; that is to say, whether the requirement
established under Article 124, section II, of the LA, to grant a stay in
the act contested involving the official document declaring the definitive
admissibility of forcing a member of the Mexican Army retire for having
contracted the HIV virus.
The Second Chamber indicated that, in conformity with Articles
124, section II, and of 138 of the LA, it was admissible to grant the
stay of the acts contested exclusively to ensure that the plaintiff soldier
continues to render services as an active member of the Mexican Army
and to receive his salary, along with the medical attention required by
himself and his family, including medicines, appointments,
hospitalization, and all things necessary for his medical treatment, on
the understanding that the related retirement process will continue until
the respective resolution has been passed regardless of whether the
competent military command relocate the individual in question due
to this state of health. 249
249
JANUARY
2006
The right to defense in face of acts of
expropriation must be exercised prior to the
definition of said acts
Amparo under review 1133/2004. January 16, 2006. Opinion delivered
by Justice Juan Díaz Romero. Justice in charge of the case file,
Margarita Beatriz Luna Ramos.
The claimant —a sugar mill— maintained that the responsible
authorities had violated to its detriment his right to a hearing for, prior
to expropriation, the mill had not been given the opportunity to discredit
the causes of public interest to justify expropriation. In face of this, the
bench of the Supreme Court, specified the scope of the right to property
—specifically those relating to defense against privative acts of such
right— and defined the scope of the expropriatory authority in relation
to the right to hearing of the aggrieved party.
The Court, indicated that under constitutional Article 27 land
and water is divided into public, private, and social property, and added
that the Mexican legal system establishes (constitutional Article 14,
second paragraph) in expropriatory matters, that the prior right to
hearing is not required. The Court recalled that, upon issuance of the
current Federal Constitution, the second paragraph of Article 14 was
in principle interpreted as a legal right that could not be extended to
the administrative sphere. But, the Court continued, the political,
economic, social, and national legal development generated an
exorbitant growth in administrative law, originating the legal regulation
of different sectors in which it was necessary to achieve a normative
balance of the private and public interests that could come into conflict.
475
476
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This regulation produced administrative institutions responsible for
ensuring compliance of the norms aimed at regulating such different
interests in the respective fields, which resulted in administrative norms
empowering certain authorities to affect the legal sphere of individuals
with greater clarity, in the cases when that was indispensable to
safeguard the public interests constitutionally protected.
In the opinion of the Court, the possibility of having the rights of
individuals affected by administrative authorities brought on the idea
that this type of body should abide by and apply the Constitution
directly, and not carry out actions in violation of individual rights. Thus,
the second paragraph of constitutional Article 14, indicated that
"Nobody could be deprived of life, freedom, or of their property,
possessions or rights, except by means of a trial (…)", also applies to
the administrative authorities. Thus, the fact that the law keeps silent
in terms of a hearing proceeding in the case of privative acts was
consolidated and thus should not impede the administrative authorities
from granting the opportunity of defense to the individual affected, in
direct application of the Federal Constitution.
The Court defended the need for a new interpretation of the
scopes of the hearing in relation to the right to private property and
the expropriatory power. It found that the expropriatory authorities
should not only present a public interest cause for the expropriation,
but should accredit such cause in the concrete case. It concluded that
the ruling on the concept EXPROPRIATION. GUARANTEE OF PRIOR
HEARING DOES NOT GOVERN IN THE MATTER, 250 should be re
interpreted, for constitutional Article 27 does not make evident that
the Constitution has established an express exception in relation to the
right to a prior hearing in the case of expropriation, but that only
constitutional silence exists in this respect. Moreover, the Court was of
the opinion that constitutional Article 14, second paragraph, results in
privative acts of property generally being carried out to ensure that
the essential formalities of the proceedings are fulfilled. Furthermore,
although in certain matters it can be constitutionally justified that the
defense of an act of privation takes place subsequently and not
previously, the Court, found no reason to support the argument that
this should occur in the case of expropriatory acts.
250
Ruling P./J. 65/95, ib., t. V, June 1997, p. 44.
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477
Thus, the Court considered incorrect to indicate that the
Constitution does not establish a prior hearing as a requirement for
expropriation, given that such affirmation is based on an interpretation
that is alien to the interpretations of the Supreme Constitution. The
Court, was of the opinion that, in urgent cases, the implementation of
a prior proceeding for the execution of the expropriatory measure could
generate irreparable affectation to the interests of the collective which
would go against the constitutional conception of private property
whose social function affects the very core of the law. However, the
fact that urgent cases should exist to justify the immediate execution
of some measures aimed at satisfying concrete public needs does not
imply that the right to such previous hearing should be left aside in
face of expropriatory acts. In this sense, the Court indicated that the
problem lay in determining how it is possible to establish a constitutionally
adequate balance between the collective interests that suffice to justify
the immediate interventions of private property and the guarantees of
effective defense in face of expropriatory acts.
The Court noted that the legislator has recognized that not only
through privative (expropriation) acts but also by means of acts of
nuisance (temporary, total or partial occupation, etc.), as shown in
Articles 1, 29. and 89 of the Expropriation Law, is it possible to confront
immediate public and social needs. There are thus significant reasons
to overcome the consideration in the sense that the expropriation
attends to urgent circumstances that require rapid determination, which
could not be achieved by hearing the aggrieved party prior to urgent
execution. These reasons moved the Court, to determine that, the right
to defense in face of expropriatory acts must be prior to the definition
of the private act to the benefit of its efficaciousness.
The Court affirmed that, should the prior hearing not be
admissible in face of an act of expropriation, any expropriatory decree
would be almost definitive; no mechanism of defense would serve to
combat an act of expropriation, for the course of time and the temporary
firmness of the expropriatory act would make possible the return of
the property affected in actual terms to the citizen, whenever no success
is had before the courts.
Moreover, upon examining the concepts of violation argued by
the plaintiff, the Court decided that they were grounded and that the
constitutional protection requested in relation to the "Decree by means
478
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of which public interest causes are expropriated in favor of the Nation,
as well as shares, coupons, and/or representative capital titles or social
parts of the companies listed below" —published on September 3
and 10, 2001 in the Federal Official Gazette— violates Article 14,
second paragraph, of the Federal Constitution. The authorities
responsible for the issuance of such decree had not permitted the
plaintiff company from demonstrating that its situation did not coincide
with the legal assumptions contemplated in such an administrative act
by means of the implementation of a summons process. All documents
had not been made known and the factual circumstances leading to
the determination by the authorities to expropriate the economic unit
belonging to the plaintiff, granting the possibility of demonstrating
that such a decision was inadequate.
Articles 262, Section VIII, and article 278, rule
one of the State of Durango Civil Code, infringe
the rights protected by constitutional Articles
4 and 22
Direct amparo under review 1978/2005. January 25, 2006. Opinion
Upon analyzing the sentence contested by the appellant, the First
Chamber of the Supreme Court considered that Articles 262, Section
VIII, and 278, first rule, of the Civil Code of the State of Durango, are
unconstitutional because they transgress the rights contained in Articles
4 and 22, of the Federal Constitution.
The Chamber mentioned that the institution of parental authority,
consisting of no more than the confirmation of a right based on the
nature of parent-child relations that arises as from the moment such
relations is taken to exist, regardless of the existence of marriage or
not, is recognized both under the Federal Constitution and under the
Convention on the Rights of Children. These legal documents, as well
as the Civil Code of the State of Durango, attribute a series of rights and
obligations to ascendants —parental authority— in order to assist
and protect children, and monitor their healthy development.
The Chamber went on to indicate that the institution of parental
authority exists to safeguard the healthy development of minors through
the assistance of those who procreate offspring (within or without
marriage) and that, therefore, although parental authority and the
related rights derived in favor of ascendants exists as a guarantee to
479
480
RELEVANT DECISIONS
ensure the development of minors, there are also cases in which the
greater interests of the child or his comprehensive development may
be affected by the conducts of their parents or ascendants. In these
cases, the State can contemplate the loss of such parental authority in
order to safeguard the aforementioned guarantees, for the permanence
of parental authority over the child could bring on the opposite result
to that established under constitutional Article 4.
Upon analyzing the provisions whose unconstitutionality was
alleged, the Chamber determined that in accordance with these, the
unjustified abandonment of the home for more than six months brings
on the dissolution of the marital bond and for a spouse that abandons
the family home, the immediate loss without any possibility of
judicial evaluation, of the legal custody of minors. Given the above,
the Chamber inferred that the consequences contemplated by the
Challenged laws can generate an alteration in the possibilities of
development of minors, for the abandonment of the family home does
not necessarily imply the abandonment of the minors subject to the
parental custody or the abandonment of duties by the party that
exercises such authority. In this sense, the Chamber established
that the consequence consisting of the loss can compromise the integral
development of minors by not having the assistance and care of one
of the parents, which is why it determined that the exceptional situation
that justifies the loss of parental authority is because the integral
development of the minor may be altered and can exist in the case of
unjustified abandonment of the family home for more than six months.
Thus, the First Chamber determined that it should be considered
that Article 278, first rule, of the Civil Code of the State of Durango,
violates the rights enshrined in constitutional Article 4, by not allowing
the judge to value the circumstances of the case to determine whether the
loss of parental authority is admissible or not, running the risk that
the healthy development of minors be altered.
Moreover, the Chamber was of the opinion that the appellant
was also favored in that the norm formed by Articles 262, Section
VIII, and 278 of the Civil Code of the State Durango, has the legal
nature of a sanction, for it is a coercive act —decreed by the competent
authority— depriving the beneficiary of the norm governing a benefit,
does not permit such party to exercise his or her rights derived from
his or her paternal authority, and is a direct legal consequence of the
sanction of the beneficiary —the loss of parental authority is a reaction
to the non-fulfillment of a series of obligations derived from the
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matrimonial relationship or from the child-parent relationship.
Consequently, the Chamber considered that the sanction contemplated
in the Articles contested contravenes constitutional Article 22, given
that, the sanctions, fines, and in general any other sanction by the tax
authorities cannot be excessive, against national norms or custom on
extremely harsh. In the case analyzed, a sanction that went against
national norm or custom was established, given that the norm, far
from guaranteeing the welfare of the minor, could in fact affect such
minor and lead to the non-fulfillment of the healthy development
guarantee of the family by depriving the minors of the assistance and
protection of their ascendants in situations whereby no act justifying
such a sanction has been carried out. This does not correspond to the
aims contemplated by the legislature.
481
Article 10 of the International Extradition Law is
not applicable when an International Extradition
Treaty between the United Mexican States and
the requesting state has been executed
Resolution to Opposite Rulings 51/2004-PL. Between the Third
Collegiate Criminal Court of Circuit One and the Second and
Seventh Collegiate Criminal Courts of the First Circuit. January
31, 2006. Opinion delivered by Justice Olga Sánchez Cordero de
García Villegas.
The point of contradiction involved establishing the admissibility or
inadmissibility of applying Article 10 of the International Extradition
Law (LEI) in case of an extradition tready entered into by Mexico and
the requesting State; that is to say, whether the requesting State is required
to comply with the requirements indicated in any of the seven Sections
of the aforementioned Article whenever a treaty is in existence. The
bench of the Supreme Court, resolved the controversy.
Firstly, the Court, analyzed Articles 1, 2, 10, and 16, of the LEI,
published in the Federal Official Gazette on December 29, 1975. It was
observed that Article 1 establishes as the objetivee of the LEI, that of
determining the cases and conditions to hand over to the requesting
States the accused appearing before its courts or those convicted by
such courts for common offenses, whenever no international treaty
signed by Mexico and the requesting state exists. This implies an
application rule to determine the cases and conditions of extradition,
whenever such a treaty does not exist.
The Court stated that although the contents of Article 2 of the
LEI, could appear contrary to that indicated under numeral 1 by
establishing that, for the processing and resolution of any extradition
request, the procedures established in that law are to be applied, it is
483
484
RELEVANT DECISIONS
true to say that the application of the law, regardless of whether a treaty
exists or not, refers exclusively to the processing and resolution of
the extradition request. As a matter of fact, the Court continued, the
application of the law refers to the determination of the cases and
conditions surrounding extradition whenever no treaty exists. On the
other hand, its application for any extradition only refers to the procedures
that must be applied for the processing and resolution of the extradition
request.
In such conditions, the Court, affirmed that, although it could
appear that Article 2, of the LEI, establishes the application of the law
for any extradition request (with or without treaty), it should be
emphasized that such an application is limited to the procedures relating
to processing and resolution of the extradition. Thus that, in conformity
with Article 1 of such regulation, such law is to be used to determine
the cases and conditions surrounding extradition only when an
international treaty does not exist.
The Court clarified that, because an extradition treaty has been
signed, the party States to an agreement of wills therein establish the
cases and conditions governing the delivery of the individuals requested
by means of extradition, excluding any other situation in that sense.
Thus, whenever the treaty has been signed, the determination of the
cases and conditions governing the delivery to the requesting State of
the accused before its courts, or of those convicted by such courts, is
to be restricted in the sense of the treaty itself and must duly adhere to
such an agreement.
The Court also observed that Article 16, of the LEI, establishes
the requirements to be contained in the formal extradition request, the
document that serves to initiate the extradition procedure, expressly
indicating in Section III of such petition that the statements alluded
to in Article 10 of the legal regulations, are to be included in the cases
when no extradition treaty has been signed with the requesting State.
The Court, maintained that this leads to the establishment of the
existence of a specific rule for the non-application of Article 10, of the
LEI, whenever a treaty signed by Mexico and the requesting state exists.
Such a rule of non-application is consistent with that of application
contained in Article 1, of the LEI, in the sense that it becomes applicable
to determine the cases and conditions surrounding extradition,
whenever no treaty exists, for whenever it does exist, the cases and
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485
conditions surrounding extradition are to be determined in the
respective treaty.251
With regard to Article 10, of the LEI, the Court specified that it
determines the cases and conditions for extradition. It indicated the
commitments to be demanded by the Mexican State from the requesting
state for the processing of extradition petitions; that is to say, it
establishes the conditions by which the requesting State must abide in
order to have its extradition request processed; that is to say, in order
for it to initiate the respective procedure. These conditions, the Court
explained, must be determined by the LEI whenever a treaty has
not been signed, in accordance with that established in Article 1, for
that indicated in the seven Sections of the aforementioned Article does
represents no more than the conditions by which the requesting State
must abide in order to have its request considered.
Thus, the Supreme Court, concluded that Article 10, of the LEI,
does not apply when an international extradition treaty exists between
the Mexican State and the requesting state. The determination of the
cases and conditions to hand over to the requesting state the accused
or individual convicted by its courts must be included in the treaty
itself, meaning that the treaty must be duly fulfilled.
251
Ruling P./J. 77/2006, ib., t. XXIII, June 2006, p. 6.
FEBRUARY
2006
Scope of the interpretation of tax norms
establishing the essential tax elements relating
to the constitutionality of taxes in association
with the constitutional principles of tax legality
and legal certainty
and Third Collegiate Courts of the Fifteenth Circuit. February 17,
2006. Opinion delivered by Justice Margarita Beatriz Luna Ramos.
The Second Chamber of the Supreme Court observed that there existed
contradictory rulings because the contending parties, the Fourth and
Third Collegiate Cour ts of the Fifteenth Circuit, based on an
interpretation of Article 156-8 of the State of Baja California Public
Finances Law, reached different conclusions in terms of establishing
the adequate interpretation to be used to unravel the sense, and related
subject, object, and other essential elements of the tax regulating such
numeral. Firstly, the Fourth Collegiate Court of the Fifteenth Circuit
resolved that the essential elements of the tax contemplated in Article
156-8 of the State of Baja California Public Finances Law are derived
from a strict interpretation of such numeral considering the application
of tax norms must be exact whenever their mere literal interpretation
offers a solution to the case. On the other hand, the Third Collegiate
Court of the Fifteenth Circuit interpreted the scope of such a provision
based on a logical and congruent interpretation meaning that it
implicitly considered that the norms relating to essential elements of
the tax can be interpreted by means of juridical hermeneutics, in order
to unravel the correct meaning.
There were another three points of contradiction but this synthesis
only considers the first, consisting of the interpretation of tax norms
establishing the essential tax elements in relation to the constitutional
487
488
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principles of tax legality and legal certainty. In this sense, the legal problem
did not involve determining whether it is possible to use the legal
interpretation methods in the case of the essential tax elements but,
rather, the scope and operational form of such permission for the
judges.
In these terms, the Second Chamber established that although
the tax norm is not a legal norm, its only singularity being that conferred
by its own contents, in principle the same methods are to be used for
its interpretation as generally applicable in the interpretation of any
other norm. This conclusion finds still greater support in the case of
the judicial interpretation given to tax laws whenever it is considered
that the constitutionally competent bodies to dictate the law for tax
purposes are the courts and not the legislature.
Contemporary doctrine is almost unanimous in emphasizing that
it is impossible to textually apply a law to concrete cases without prior
interpretation. The act of application presupposes knowledge of the rule
to be applied and, consequently, the related interpretation work.
The Chamber added that judicial activity is dynamic activity for the
application of the abstract normative provisions to concrete cases of
reality necessarily presupposes interpretation work. Thus, experience
has shown that the judge cannot materially limit himself to interpreting
and applying the law by means of a simple judicial syllogism whose
main premise is represented by the abstract norm in its textual
appreciation, its lowest premise by the assumptions of fact, and the
conclusion by the application of the legal mandate to the specific case.
The Second Chamber indicated that courts apply the law in
society, which is why the courts ruling is not a simple mechanical
application of law. Accepting the contrary would lead to confusing the
abstract with the concrete and disregarding the dialectic movement
that operates as a result of the phenomenon of the consummation of
the norms. If the thesis (abstract norm) produced an antithesis (concrete
norm), and the synthesis was no more than a return to the original
thesis, it would be pointless to qualify jurisdiction as one of the material
functions of the State for neither an abstract nor a concrete contribution
would be made. Going from antithesis to synthesis raises a new legal
situation different from the original one given that the sentence is not
identical to the norm on which it is based upon interpretation and,
occasionally, integration. Therefore, the Chamber clarified, there are
no reasons derived from the claimed legal nature of tax law liable to
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limit in an absolute manner, the use of the different methods of judicial
interpretation upon determining the essential elements of taxes.
In short, for tax purposes, there should be no preconceptions or
limitations in the field of interpretation, for the investigation of the
norm leaves no room to dispense of the words of law or to rigorously
abide by them whenever a reasonable and systematic interpretation
thus requires it. The fact that the supposed singularity of tax norms
does not condition the jurisdictional activity, in the case of defining
the essential elements comprising the taxes, does not lead to a
determination that there are no other reasons justifying a modulation
of the activity of concretion of such elements, to a degree.
In the opinion of the Second Chamber, the Judge has a sphere of
decision-making freedom to value, in an autonomous and independent
fashion, the situations in which he should resort to methods of
interpretation recognized by juridical science to understand the
true intention of the creator of the norms and to reach a fair solution
for the cases submitted to its consideration. 252 Thus, the Second
Chamber found that, in his sentence, the judge is not required to
account for the decision of dismissing the basic literality of the tax law
to resolve the case under arbitration, but must only motivate the
interpretative result reached by his decision. In fact, the principles of
legality and legal certainty, and the legal provisions aimed at limiting
the application and legal interpretation of tax laws, are not absolute
because they go hand and hand with the decision of the Constituent
to assign to the judges and courts the responsibility of pronouncing
law in the concrete case, in an independent and autonomous manner
(jurisdictional authority), as well as with the precept that authorizes
the Judges in ordinary civil lawsuits to dictate their sentences "in
conformity with the legal word or interpretation of the law". Thus,
such constitutional principles (legality and legal certainty), along with
the legal provisions aimed at limiting the application and juridical
interpretation of tax norms, are conditioned in terms of their scopes
so as not to cancel the constitutional authority of pronouncing the law
attributed to the Judges and the courts.
Consequently, the Second Chamber was of the opinion that to
interpret the tax norms establishing the essential elements of taxes,
although it is necessary to begin with a textual reading of the respective
252
Ruling 2a./J. 26/2006, ib., t. XXIII, March 2006, p. 270.
490
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norm, all methods recognized by judicial science in the opinion of
the court in the case at hand, may be used to avoid a mechanical
application of the related provision alien to the constitutional authority
to pronounce law in the case at hand, and in an independent and
autonomous manner as requested of Judges and courts, in conformity
with constitutional Article 14, in the part whereby the pronouncement
of sentences "in conformity with the legal word or interpretation of the
law" is authorized.
In that sense, the Chamber concluded that the norms that establish
the essential elements of taxes must not necessarily be interpreted in
conformity with the mere literality of their texts or according to rigid
grammatical guidelines, but should be read considering their profound
legal significance, without making an abstraction of their general context
and of the purposes they serve.
Article 444, Section VII of the Federal District
Civil Code governing parental rights and duties
abides by Articles 4., 14, 17, and 22 of the Federal
Constitution
Direct amparo under review 581/2005. February 22, 2006. Opinion
delivered by Justice Sergio A. Valls Hernández.
Upon resolving direct amparo under review 581/2005, the First
Chamber of the Supreme Court determined that Article 444, Section
VII, if the Federal District Civil Code (CCDF), does not transgress the
prior hearing guarantee established in Article 14 of the Federal
Constitution, given that the laws, did contemplate such a guarantee
upon composing the legal precept under challenge, by establishing
that the paternal authority was lost by means of judicial resolution.
This implies that, prior to decreeing such a loss, proceedings are to be
followed observing essential procedural formalities.
Moreover, the Court pronounced on the issue of whether the norm
under challenge violates the principles of prompt and impartial justice,
established under constitutional Article 17. In fact, the First Chamber
maintained that the norm under challenge does not violate the principle
of complete justice given that in order to decide the cases where it is
valid to take as accredited the loss of parental authority, it is necessary
to comply with all aspects debated in the proceedings, without limiting
any right of the contending parties whatsoever. That is, such norm
does not limit or restrict the right to have a Court administer justice in
the terms established under the law, given that that depends on the
elements of evidence contributed to the proceedings by each of
the parties in keeping with the fact that the action may be proved by
491
492
RELEVANT DECISIONS
the party instituting it and the objection by the defendant. Thus, this is
why the outcome of the proceedings depends on the action of each of
the parties, while the decision of the Judge is an exclusive consequence
of that. Furthermore, it was confirmed that the determination of the
Circuit Collegiate Court in the sense that Article 444, Section VII of
the CCDF cannot be considered to violate the principle of impartiality
that must characterize any judge in a judicial dispute, given that its
text makes evident the establishment of an obligation for the judge to
act partially towards one of the litigating parties. Previously, the local
legislator only limited himself to ensuring that whoever loser parental
authority does so as a result of committing an offense detrimental to
the property or the minor himself with respect to which the offender is
condemned to serve a final sentence.
The First Chamber added that the loss of parental authority does
not represent an excessive penalty, or an punishment that goes against
national norms or customs or that is extremely harsh, because it does
not relate to ends sought by the sanction in matters of a penal nature,
meaning that the secondary norm challenge does not violate Article
22 of the Constitution. Additionally, the Court considered it inexact that
Article 444, Section VII, of the Civil Code, in accordance with which
parental authority is lost when whoever exercises the action has
committed an offense detrimental to the property or minors themselves
as determined by final sentence, is in violation of constitutional Article
23, because the same offense is not being judged twice.
Finally, the Court established that Article 444, Section VII, of the
CCDF, does not go against paragraphs six, seven, and eight of Article
4 of the Federal Constitution either, given that the fact that one of
the parents should commit an offense detrimental to the goods or to the
minor himself, does not constitute a conduct that affects and is
detrimental to the health, security, or morality of the children against
whom the offense is perpetrated.
It is the discretionary power of the Executive to
hand a Mexican citizen over to a foreign State
Amparo under Review 199/2004. February 27, 2006. Opinion delivered
by Justice Margarita Beatriz Luna Ramos.
Upon resolving this matter, the bench of the Supreme Court, observed
that the litis was limited to the concepts of violation whereby the plaintiff
contested Articles 1, 2, and 9, numeral 1, of the Extradition Treaty entered
into by and between Mexico and the United States of America (the
Treaty). 253 The plaintiff was of the opinion that Article 9, numeral 1,
violated Articles 14, 16, 133 and 128 of the Mexican Constitution. The
Court, considered this argument unfounded because the content of
the remaining provisions of this instrument made it evident that the
authority of the State for extradition purposes is subject to the observance
of various requirements, including those of a constitutional nature. These
prevent the exercise of such a power in an absolute manner, given
that extradiction is governed by the individual rights provision
established under the Federal Constitution for criminal purposes.
The Court, observed that Article 13 of the Treaty establishes that "the
extradition request must be processed in accordance with the legislation
of the party summoned". Thus it is required that the related proceeding
conform with national legislation, as established under the Federal
253
Signed in Mexico City on May 4, 1978, and published in the Federal Official Gazette
on January 23, 1979.
493
494
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Constitution. The Court added that the expressions "at its total
discretion" and "whenever it deems is applicable", contained in the
aforementioned Treaty, do not imply that the extradition power granted
under the Treaty to the Federal Executive is not subject to any rule.
What the Mexican State signed was an international commitment to
hand over individuals summoned whenever the conditions stipulated in
that instrument were fulfilled but in conformity with domestic law for
purposes of such proceeding, involving the legal control necessary to
guarantee a defensive and probative opportunity to the accused, as well
as due process of law.
On the other hand, the Court considered that the discretionary
authority specifically referred to under Article 9 in question, as opposed
to promoting the unrestricted hand over of nationals to the summons
server, instead implies the legal possibility of a negative answer. Said
provision entitles the summoned State not to accede to the extradition,
even when the related requirements for such extradition are met, as
that may only take place: "… if its laws do not prevent such State from
handing the individuals over if, at its total discretion, it considers it
applicable". Such a refusal cannot be construed as a failure to fulfill an
agreement, but represents the exercise of sovereign power to accede
to the request or not, over and above the abidance by the conditions
contemplated under the Treaty for the case at hand. Thus, the Court
concluded that the Article 9, numeral 1, of the Treaty, is necessarily
subject to the guarantee of legality established under constitutional
Articles 14 and 16, among others.
On the other hand, the plaintiff had argued that provisions 1 and
2 of the Treaty violated Article 15, in relation to Article 18, paragraph
two, and Article 22, paragraph one, of the Federal Constitution. In this
respect, the Court, considered that constitutional Article 18, by
establishing that "Federal and state governments must organize the
penal system in their respective jurisdictions based on work, training,
and education as a means conducive to the social re-adaptation of
delinquents", does not constitute an individual right in relation to this
last point. For that reason, Article 18 of the Constitution cannot be
considered violated by the fact that, under United States legislation,
the aim of punishment is not to reintegrate the offender into society.
The plaintiff also indicated that the Article 2 of the Treaty is
unconstitutional because it extends the catalogue of offenses contained
in its Appendix and thus opens the possibility of extraditing an individual
wanted for crimes not contemplated under such Appendix or by
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Mexican penal legislation. The Court considered this concept unfounded
and indicated that in its unconstitutionality argument, the party
requesting relief argued the existence of a violation of the division of
powers principle given that, by subscribing to Article 2 of the Treaty,
the head of the Executive extended the catalogue of crimes
contemplated under his Appendix or under current Mexican penal
legislation to include other offenses not found in our legislation, thus
materially legislating for criminal purposes and assuming an authority
reserved for the Congress. However, Article 2 of the Treaty does not
contemplate crimes other than those established in the Appendix or
under current Mexican penal legislation. In the Treaty, the party States
agreed, as a requirement for extradition, that the conduct that motivates
the respective request is punishable according to the laws of the
contracting parties under penalty of deprivation of freedom for a
minimum term of one year, and that the crimes contemplated in the
aforementioned Appendix are regulated under national penal legislation
(Federal Penal Code, Federal Law of Firearms and Explosives, General
Law of Population, etcetera).
The Court, emphasized that Article 2 of the Treaty indicates that
extradition must be motivated by intentional conduct that, in
accordance with the qualifications of any of the subparagraphs
comprising the Appendix, are punishable according to the laws of both
contracting parties through imprisonment of at least one year, implying
that the international agreement alludes in general to the crimes listed
in the Appendix as crimes according to the laws of both parties. Thus,
for extradition to be applicable derived from crimes committed in the
territory belonging to the State that issues a summons, it suffices for
the conduct to also be considered a crime under the law of such State
by means of the aforementioned minimum one year imprisonment
penalty, regardless of the details of the description of the crime used
by the legislator.
MARCH
2006
The First Chamber of the Supreme Court makes
a distinction for Income Tax purposes between
the loans obtained by related/independent
parties abroad and those obtained in Mexico
The plaintiff challenged Articles 32, Section XXVI, and the third transitory
article, Section III, of the Mexican Income Tax Law (LISR) for 2005, which
indicate that:
Article 32. For purposes of this Title, the following are not deductible:
(...)
XXVI. Interest held on excessive debts held by the taxpayer in relation
to his capital derived from borrowed capitals that have been granted
by one or more persons considered to be related parties in terms Article
215 of this Law, provided that the amount of such debts is more than
three times the stockholders’ equity amount as per the statement of financial
position of the taxpayer, without considering the net loss or income of
the year.
Likewise, that established in this Section will be applicable to interest
derived from excessive debts held by the taxpayer in relation to his
capital derived from capital borrowed from an independent party
resident abroad, whenever the taxpayer is a related party of one or
more persons in terms of Article 215 of this Law.
In order to determine the amount of debts exceeding the limit indicated in
the first paragraph, from the annual average balance of the total debts,
will be deducted the quantity resulting from multiplying the quotient
by three that results from dividing the stockholders’ equity amount at the
beginning and at the end of the year by two.
For purposes of the above paragraph, the taxpayers must determine
the average annual debt amount by dividing the balances at the last
monthly closing of each month of the yea by the number of months in
497
498
RELEVANT DECISIONS
the year. The interest accrued in the month will not be included in the
balance of the last day of each month.
The amount of non-deductible interest referred to in this Section will
be determined by dividing the total interest accrued in the year by the
average annual debt balance. The result obtained will be multiplied by
the amount of debts exceeding the limit referred to in the first paragraph
of this Section.
For the calculation of the average annual debt balance referred to in
paragraph four of this Section, the following will not be included:
mortgage credits constituted on the basis of real property acquired in
the year during which the mortgage is taken on or in the immediately
previous year, provided the information requirements established for such
purposes in the Regulations to this Law are fulfilled. That established in
this paragraph will not be applicable whenever the mortgage in question
has been granted by one or more persons considered to be related
parties in terms of Article 215 of this Law.
Moreover, the debt limit with respect to the capital referred to in this
Section, will not be applicable, in the case of members of the financial
system in realizing operations that form part of its corporate purpose
provided that the capitalization rules corresponding in terms of the
applicable legislation to the financial system are complied with, and
neither to the taxpayers who obtain a favorable resolution in terms of that
indicated by Article 34-A, of the Federal Tax Code, demonstrating
that the operations object of the resolution are carried out at prices or
consideration amounts that would have been used in operations
between independent parties, provided the capitals borrowed have been
granted by one or more persons considered to be related parties in terms
of Article 215 of this Law, and that are presented jointly with the resolution
request referred to in this paragraph, a report issued by duly registered
public accountant, containing the methodology that demonstrates that
the prices or consideration amount are those that would have been used
with or between independent parties in comparable operations.
Whenever a taxpayer that is a related party of one or more persons in
terms of Article 215 of this Law, obtains credits from an independent
party, such credits will not be considered to determine the limit of the
debts with respect to the capital referred to under this Section, when
the profit margin attributable to operations carried out with related
parties, results reasonable applying any of the methods established
under Sections IV, V or VI, of Article 216, of this Law, provided that a
favorable resolution is obtained in terms of that indicated under Article
34-A, of the Federal Tax Code, demonstrating that the operations under
the resolution are carried out at prices or consideration amounts that
would have been used between independent parties and that are
presented jointly with the resolution request referred to in this paragraph
a report issued by a duly registered public accountant, containing
the methodology used in determining such profit, in conformity with the
requirements established for such purposes under the regulations to
this Law.
THIRD ARTICLE. In relation to the modifications referred to in the
First Article of this Decree, the following must be observed:
(...)
OF
J USTICE
III. For the purposes of that established in Section XXVI of Article 32,
of the Mexican Income Tax Law, the taxpayers who at the time of entry
into effect of this Decree determine that the amounts of their debts are greater
than their capital in conformity with that indicated in the aforementioned
Section XXVI, of Article 32, shall have a term of five years taken as
from the entry into effect of this Decree, to proportionally decrease in equal
parts in each one of the five years, to reach the limit established in the
aforementioned legal precept.
In case the amount of the debts with respect to which the capital is
greater than the limit contemplated in Section XXVI, of Article 32 of
the Mexican Income Tax Law, upon conclusion of the established term
referred to in this Section, the interest derived from the amount of debts
exceeding the indicated limit accrued as from January 1, 2005, will
not be deductible.
The First Chamber of the Supreme Court considered inapplicable
the first complaint by the plaintiff, because in order to resolve the
question of constitutionality relating to the principle of proportionality,
the a quo had maintained two fundamental motifs: firstly, where
reference was made to the five-year term contemplated under transitory
Article three, and the other relating to the non-tax purposes considered
by the legislator to disregard the principle of tax proportionality in the
case at hand.
The plaintiff concentrated his complaint on the fact that the
aforementioned transitory provision should allude to a term to
proportionally decrease excess debt, cannot remove a possible
unconstitutionality error from the norm. The First Chamber of the Court
considered this inapplicable for such circumstance is not consummated
by the nature of the non-tax ends sought by the challenged norm in
the case at hand. All things considered, the Court added, the related
exposition of motives makes it evident that the legislature fully justified
the non-deductibility of the interest derived from excessive debts
held by the companies, indicating that this is conducive to discouraging
undue decrease of the Income Tax base, or to avoid the tax profit and
losses of a company from being classified in other jurisdictions with a
tax burden lower than that applicable in Mexico.
Moreover, the Chamber considered groundless the arguments put
forward by the plaintiff in the sense that the text of the norm under challenge
makes evident that the prohibited assumption of the non-deductibility
of interest, whenever the excessive indebtedness exceeds the financial
rule of three to one between debts and stockholders’ equity, is not
related to the taxpayers —related parties— who obtain loans from
another related party or from independent parties resident abroad.
499
500
RELEVANT DECISIONS
That is to say, whenever the categories at hand are different categories
of taxpayers, as indicated by the federal judge. This is corroborated upon
considering that the exposition of the claim consisted in the differential
treatment applied to the majority of corporate entity taxpayers as
compared to the taxpayers referred to in Article 32, Section XXVI.
Finally, the Chamber was of the opinion that, contrary to that
expressed by the appellant, that the District Judge had exposes sufficient
motifs justifying the differential treatment contained in the precepts
under challenge, as shown by the related legislative process, without it
being necessary for the law to present the reasons of the legislature
as well.
MAY
2006
In related direct amparos, the motives for dismissal
contemplated under Article 74, Section IV, of
the respective law are updated with respect
to the second guarantee trial whenever the
respective authority nullifies the award sought
in compliance with the sentence passed at the
first trial
Collegiate Court of the Ninth Circuit and the Second Collegiate Labor
Court of the Third Circuit. May 12, 2006. Opinion delivered by Justice
Guillermo I. Ortiz Mayagoitia.
In the case at hand, contradictory rullings existed between the Circuit
Collegiate Courts given that:
a)
b)
Upon hearing the direct amparos of their respective indexes,
the Second Collegiate Court of the Ninth Circuit and the Second
Collegiate Labor Court of the Third Circuit, pronounced on the
same legal situation: if it is correct to cease the second instance
proceedings in the case of related amparos whenever the sentence
contested, has been declared void by the Board responsible for
fulfillment of the sentence pronounced in the first amparo
proceedings.
Upon resolving the matter exposed, the collegiate bodies reached
different conclusions for the Second Collegiate Court of the Ninth
Circuit determined that the second guarantees proceedings should
be dismissed given that the sentence contested has been
considered invalid after the granting of the amparo in the first
proceedings, and its effects have ceased, and therefore the
invalidity contemplated in Section XVI, of Article 73, of the Amparo
Law (LA) is updated. On the other hand, the Second Collegiate
Labor Court of the Third Circuit determined that it was not valid
to dismiss in the second guarantees proceedings, given that the
effects of the sentence contested did not cease in what was not
matter for analysis in the first amparo proceeding, given that they
persist "as a legal reflection of what is already disqualified" by
having reiterated the new sentence issued in compliance with the
sentence dictated in the first guarantees proceedings and, therefore,
501
502
RELEVANT DECISIONS
c)
susceptible to analysis, given that the sentence challenged is in
that aspect sub júdice.
Likewise, the criteria specified were based on an examination of
the same elements: 1) both the plaintiff and the defendant in a
labor lawsuit, instituted direct amparo proceedings against the
same sentence; 2) the responsible authority remitted the amparo
proceedings instituted by the defendant to the Circuit Collegiate
Court, after this Court resolved the proceedings instituted by the
plaintiff, who received constitutional protection from the courts
disqualifying the sentence challenged and by means of the
issuance of a new sentence reiterating what was not a matter for
analysis and rectifying the aforementioned violations; and 3) upon
resolution of the second amparo proceedings (instituted by
the defendant), the responsible Board had already declared the
disqualification of the sentence contested and had pronounced
a new sentence in compliance with the sentence dictated in the
first amparo proceedings (instituted by the plaintiff).
The Second Chamber of the Supreme Court recalled that in order
for the inadmissibility contemplated under Article 73, Section XVI, of
the LA, to be valid, it does not suffice for the authority to render the
act contested as being null and void. Its effects must also be destroyed
to ensure that things recover the status prior to the perpetration of the
alleged offense, as if constitutional protection had been granted.
The reason that justifies the invalidity of the proceedings due to the
nullification of effects is not the suspension or destruction of the act
claimed but the futility of analyzing an act that is not and will not be
effective.
All things considered, the Chamber added that, in the case of
related direct amparos instituted by the plaintiff and the other by the
defendant —or by an interested third party, as the case may be— it is
valid to dismiss the second proceedings due to the inexistence of the
act contested in the original suit, in conformity with Article 74, Section
IV, of the LA. In order to duly comply with a sentence dictated in direct
amparo proceedings, the responsible authorities must declare the award
contested as disqualified and must issue a new sentence covering all
the litigious aspects; that is to say, both those that are the matter of
constitutional protection as well as in the case of those in the protection
decision. In this sense, it is not legally possible for two decisory acts to
coexist with respect to a single controversy for it must be considered
that the act contested in amparo proceedings ceases to exist when, by
virtue of the granting of the protection of the Federal Courts, the
OF
J USTICE
503
responsible authority declares them dismissed, for this necessarily
implies the issuance of a resolution that substitutes the previous
resolution.
Finally, the Chamber affirmed that in the case of related direct
amparo proceedings, the cause for dismissal established in Article 74,
Section IV, of the LA, must be considered updated with regard to
the second guarantees proceedings, whenever the records show that
in compliance with the sentence pronounced in the first proceedings,
the responsible authority dismissed the award contested, regardless
of the circumstance that the aspect aggrieving the plaintiff in the second
amparo proceedings has been the subject of analysis in such hearing.
In accordance with the decision granting protection, the responsible
authority must pass a new sentence including all litigious matters to
substitute that declared unconstitutional. Therefore, it is not legally
possible for two decisory acts to coexist with respect to one dispute,
taking into consideration that the plaintiff of the second amparo
proceedings may, validly, challenge the new decision by means of
another lawsuit.254
254
Época, t. XXIII, June 2006, p. 211.
JUNE
2006
The Second Chamber of the Mexican Supreme
Cour t lays down jurisprudence on the
requirements to qualify the professional origin
of an illness
Resolution to Opposite Rulings 209/2005-SS. Between the Eleventh
and Twelfth Collegiate Labor Courts of the First Circuit and the
former Fourth Collegiate Court of the Twenty First Circuit, currently
the Second Collegiate Criminal and Administrative Court of the same
Circuit. June 2, 2006. Opinion delivered by Justice Guillermo I.
Ortiz Mayagoitia.
The Eleventh Collegiate Labor Court of the First Circuit maintained
that, in order to establish the professional origin of labor related
sickness, it is necessary to demonstrate the activities or labor
environment from which such sickness is taken to arise and that the
insured party demanding recognition has fulfilled with the burden of
proof backing such events, so as to consider effective the causal link
and for the legal assumption in Article 513, of the Mexican Labor Law
(LFT) to be taken as effective. The former Fourth Collegiate Court of
the Twenty First Circuit (currently the Second Collegiate Criminal and
Administrative Court of the Same Circuit), agreed with this criterion
for, by considering that the evidentiary burden must be turned over to the
Mexican Social Security Institute (IMSS) for it to determine whether
the insured party is suffering from a work-related illness, it implicitly
considered that such burden of proof pertains to the worker as regards
the facts grounding his claim, including that relating to the activities
"as allegedly affirmed". For its part, the Twelfth Collegiate Labor Court
of the First Circuit was of the opinion that it is unnecessary to
demonstrate the activities or work environment for work-related
sickness in the table presented under Article 513 of the LFT given that
the assumption that the alleged condition is of professional origin is
thus updated, explaining why the medical report deciding on the
505
506
RELEVANT DECISIONS
existence of such sickness and the degree of incapacity should suffice
to determine such origin. This is not the case whenever such legal
assumption does not operate, for then it becomes necessary to
demonstrate such causal link.
Upon resolving, the Second Chamber of the Supreme Court
indicated that in ruling 2a./J. 14/2004,255 derived from resolution to
opposite rulings 17/2003-SS, it had maintained that for the professional
origin of a given sickness to be determined, it is necessary to consider
the facts demonstrated which constitute the basis of the action, relating
to the activities or work environment in which such sickness is deemed to
take place. These are not proven no legal assumption can be attributed,
given that the known fact would not be available to establish the
unknown element inherent to the causal link, as contemplated under
Article 513, of the LFT. Therefore, establishing the direct or indirect
relation with the origin of the sickness is dependent on the presupposition
of the action. That is to say, its causality with the labor activities or
with the environment in which the service is rendered, and must be
what governs such condition, either in the case of sicknesses with
respect to which legal assumption is taken to be effective as a result of
being included in the table in the aforementioned Article 513, or in
the cases of those whereby legal assumption is not updated, given that
it is the confirmation of those facts that in both cases serve to establish
the causal link. In this sense, the Chamber concluded that in order to
qualify the labor origin of the sickness, it does not suffice for both the
sickness and the activity to be included under one of the subsections
in the table of the aforementioned laws nor can it be maintained that
the expert medical report can, by itself, lead to such a qualification,
without a need to confirm that the specific activity or environment
indicated in the labor lawsuit was in existence given that it is necessarily
required to have confirmation of two facts: the existence of the
condition, normally diagnosed in the expert medical report, and for
the specific activity carried out or related environment to be identified.
Only if these facts are known can be the aforementioned causal link
be determined and the legal assumption on the professional origin of
the sickness diagnosed be updated, if applicable. 256
255
Semanario Judicial de la Federación y su Gaceta, Novena Época, t. XIX, February
2004, p. 202.
256
Época, t. XXIV, July 2006, p. 351.
OF
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507
Moreover, the Second Chamber referred also to the criterion that
established that, it is indispensable to confirm the causality with the specific
activities developed, or with the related work environment, in order to
qualify the professional origin of a sickness. This is valid both for the
sicknesses with respect to which legal assumption is applicable due to
their inclusion on the table contained in the aforementioned Article 513,
and to those sicknesses that do not update such an assumption, given
that it is the confirmation of the facts which in both circumstances serves
to determine whether the aforementioned causal link is accredited. In this
sense, the probative burden of the facts in the claim, as a basis for the action
of professional recognition of a sickness, is the responsibility of the insured
party, and the obligation of the Board, contained in the first part of Article
784, of the LFT, does not involve transferring such burden to the Mexican
Social Security Institute (IMSS) for, as an insurance company subrogated
to the obligations of the employer in the sphere of labor risks, it does not
possess the documents inherent to the conditions that governed the work
relation. These sometimes refer to the different periods of activity, including
activities effectively carried out in the working life of the employee or in
the environment in which the employee was required to render services,
but with unilateral and isolated information provided by the employer
when registering his workers, retiring them, or modifying their salary, which
would be insufficient to maintain that he has better elements than
the worker to support the facts relating to which he only has official
documentation containing the affirmations made by the employer —which
in any case demonstrate that they were duly entered into the related
document— but does not testify as to their veracity, as established in
Article 812, of the LFT. In this sense, it is clear that the Mexican Social
Security Institute (IMSS) cannot demand that ideal documentation is held
to demonstrate the facts in question if, in conformity with the related law,
such possession is not obligatory. This does not deprive the Board of
Arbitration, upon analyzing the case at hand, from considering that it
may hear the facts of the suit by other means relating to the activities or
the environment in which services were rendered, and that this may
exempt the insured party from the probative burden and from unofficially
gathering the information from those in possession of it, in use of the
obligation imposed by the first part of Article 784, of the LFT, and which
brings about the intention of the law to encourage the participative system
in the labor process to ensure that third parties alien to the suit, including
the authorities, to contribute the probative elements at their disposition
as a result of being to keep these by law, with a view to clarifying the
facts.257
257
Ruling 2a./J. 93/2006, ib., p. 352.
BIBLIOGRAPHY
Gaceta del Semanario Judicial de la Federación.
La descentralización en la impartición de justicia federal. Serie El Poder
Judicial contemporáneo, No. 4, México, Mexican Supreme Court, 2006.
La división de poderes. Serie Grandes temas del constitucionalismo
mexicano, No. 2, México, Mexican Supreme Court, 2005.
Las garantías de seguridad jurídica. Colección Garantías individuales,
No. 2, 2a. ed., México, Mexican Supreme Court, 2005.
Las garantías de libertad. Colección Garantías individuales, No. 4, 2a.
ed., México, Mexican Supreme Court, 2005.
La jurisprudencia. Su integración, 2a. ed., México, Mexican Supreme
Court, 2005.
Los tribunales constitucionales y la Suprema Corte de Justicia de la
Nación, 2a. ed., México, Mexican Supreme Court, 2006.
Semanario Judicial de la Federación y su Gaceta
509
The edition of this publication was
made by the General Management
of the Coordination on Compilation
and Systematization of Thesis of
the Supreme Court of Justice of the
Nation. Souvenir types 9, 10 and 14
points were used. This edition consists
of 1,000 units. November 2007.

Untitled - Biblioteca - Suprema Corte de Justicia de la Nación

Transcription

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