Monday, April 08, 2013

Mexican amparo writ expands post-conviction rights beyond habeas

You learn something new every day. Grits has for some time been interested - in part out of professional necessity working for the Innocence Project of Texas - in the inner workings of the habeas corpus process in Texas, in other jurisdictions, and for that matter historically. However I was unaware before now that under Mexican law and in several other Spanish-speaking countries there is a post-conviction writ in addition to habeas corpus called the writ of amparo or el "Recurso de Amparo," which protects a separate and distinct category of rights. published an item from the Mexican president's office promoting a revamp of the rules titled, "Mexico Outlines its New Writ of Protective Injunction Law." According to that source:
The injunction (amparo) has been, and is, Mexico's main instrument of rights that people have to protect themselves from the authorities' power. Several wide-sweeping changes have been achieved in three main areas:

First. It expands the sphere of the protection of rights.

Human rights treaties enshrined in international treaties will be the subject of direct protection.
It provides judgments of unconstitutionality with general effects from the Supreme Court of Justice, which protects the rights of all people, even if they have not been tried. .

Second. It increases the effectiveness of Mexican justice.

The sentence of any "injunction for purposes" will indicate the precise terms that must be met....
Third. It strengthens the Judicial Branch of the Federation, particularly the Supreme Court of Justice.

"Full Circuits" will be created so that the thesis contradictions within the same circuit may be resolved through full circuit courts.

To ensure due compliance with injunction sentences, the sanctions scheme will be strengthened.

The Supreme Court of Justice of the Nation may remove the authorities and their immediate superiors from office and report them to the District Judge if they fail to carry out an injunction sentence.

Today, after 172 years, the most important instrument for constitutional control in our legal system, the injunction, has been brought up to date.
Hard to know from this - essentially a presidential press release - whether these changes are a good thing or a bad one. Hell, this is the first I've heard of this particular post-conviction writ from south of the border. But giving the Supreme Court power to "remove the authorities and their immediate superiors from office" if they fail to comply with an injunction seems like a potent judicial tool.

As always, though, the devil is in the details and there may have been some very particular ulterior motives for some of the new rules. Mexico has just sued billionaire Telmex/Telcel owner Carlos Slim under federal anti-trust rules, alleging he charged illegal fees to customers of his near-monopoly communications companies which provide service to more than 3/4 of landlines and cell-phones in Mexico. Reported a recent Los Angeles Times story (April. 3):
Normally, businesses like Telmex would protect themselves using a kind of legal injunction, known as amparo, that has stymied numerous prosecutions.

But, as it happens, this week also saw changes to the amparo that, among other things, would prevent its use in cases involving "significant public interest." Many experts believe that Telmex will not be able to avail itself of the amparo this time.
I'd never heard of the writ of amparo, but naturally Wikipedia has: "In many countries, an amparo action is intended to protect all rights other than physical liberty, which may be protected instead by habeas corpus remedies. Thus, in the same way that habeas corpus guarantees physical freedom, amparo protects other basic rights." It was first developed in the Yucatan (by a reader of Tocqueville) and enshrined formally in the Mexican Constitution in 1847, after Texas had split off from Mexico. So that explains why that particular Mexican legal tradition didn't carry over into Texas law as did so many other early Mexican influences. It entered the Mexican legal lexicon just after Texas entered the Union. Still, that's a brand of post-conviction writ Grits had never heard of and would like to learn more about. Readers who may know more, please expound or point to additional (preferably English language) references in the comments.


John C. Key MD said...

I;m not sure that Mexican law, based upon the Napoleonic Code, I've heard, may indeed need this protection.

Am I missing something here, or does sthis currently have NOTHING to do with US law?

Anonymous said...

I'm thinking bribery is still the most effective way to get out of a Mexican hoosegow.

Gritsforbreakfast said...

You're right, FM, nothing to do with US law. I'm interested in it as a tangent to my interest in habeas issues. Recorded it more for my benefit than yours.

Anonymous said...

Why wouldn't this be needed in the civil system? Just because it's primarily statutory doesn't mean the government can't be abusive.


DD said...

Many treasure the system, saying it protects defendants against faulty or unwarranted arrests. But it is often subject to abuse: Wealthy suspects can have skilled attorneys file a blizzard of injunction (amparo) requests in several jurisdictions simultaneously to block arrests, property searches and prosecution.

One example of that involved a corruption case against the CEO of CFE, (the govt. owned electrical provider for all of Mx). The case began in the US, when DOJ began an investigation that resulted in indictments against executives in at least two U.S. firms that allegedly paid tens of millions of dollars in kickbacks to Moreno (the CFE CEO) and his colleagues at the commission starting roughly in 2002.

A California-based company and two of its executives were convicted in May under the Foreign Corrupt Practices Act for allegedly bribing Moreno with the yacht and the Ferrari. The executives face prison sentences of more than 30 years.

Mexican prosecutors finally issued an arrest warrant for Moreno on charges of illicit enrichment. He was arrested at an airport in Toluca, a city just west of the capital, "while trying to escape justice," the federal Attorney General's Office said in a statement announcing the arrest.

It turns out Moreno already knew the law was after him: Five days before his arrest warrant was even issued, his attorneys asked a judge in the faraway city of Monterrey to issue a temporary injunction (amparo), arguing that any attempt to arrest him would violate his constitutional rights.

This infuriated then President Calderon and he said in a statement ""You catch them and put together a good case, and they get off free,"

Calderon's statement about amparos being wrongly used created quite a furor in judicial circles that reminded me of the "The Blue Wall of Silence" - the unwritten rule that police officers protect each other when one is accused of wrong doing.

Stung by Calderon's criticism, the Mexico Federal Judiciary Council, which oversees the courts, defended the judge, noting that under Mexican law illicit enrichment is not considered a serious crime and is eligible for bail.

The council suggested that the president, a lawyer himself, was undermining the nation by knocking the judges.

"Questioning the work of the judges without any basis, automatically and without any proof, constitutes a threat to national stability," judiciary council member Juan Carlos Cruz Razo said in a clear reference to Calderon's remarks.

The president responded, saying that "what truly damages the safety and stability of the country is impunity, is the fact that thieves and criminals are out walking the streets."

Mexican authorities' difficulty in prosecuting Moreno has focused renewed attention on the country's system of protective injunctions, known as "amparos."
The changes to the amparo that, would prevent its use in cases involving "significant public interest" are probably at least in part due to the Moreno case.
DD, Admin. Borderland Beat