Derecho 1er Parcial: Non-Retroactivity & Legal Guarantees

• Study notes for Derecho 1er Parcial, dated March 7, 2025

Non-Retroactivity of Law

• New laws cannot be applied to actions that occurred before the law was enacted, if it results in harm or prejudice.
• New laws can be applied to previous actions if it results in a benefit.

Guarantee of Audience

• Involves being heard in court.
• Requires that evidence be received and accurately assessed, including a personal version of events.

Guarantee of Legality

• Entails being judged according to the law.
• Judgements cannot be arbitrary.
• Judgements align with the literal text of the law, rather than the personal opinions of authorities.

Human Right/Guarantee Regarding Political Exiles

• Treaties allowing the persecution of political prisoners or the enslavement of individuals are not authorized.
• Mexico does not condemn or harm individuals sought for their political beliefs in other countries, regardless of ideology.
• Mexico adheres to established human rights standards.

Guarantee of Juridical Security

• Protects against disturbance to one's person, family, home, papers, or possessions without a written order from a competent authority.
• Actions are permitted with a duly justified and motivated written order from the appropriate authority.

The Terms "Fundar" and "Motivar"

• Relate to guarantees rights of legality and due process.
• "Fundar" means citing applicable articles and laws.
• "Motivar" means providing an explanation or justification in a specific case.

Exceptions: "Flagrant Delito" or "Urgent Cases"

• Involves being caught in the act of committing a crime.
• Police can detain and present the individual to the Prosecutor's Office without a written order from a judge in such cases.

Requirements for Shelter/Food

• During times of war, military personnel can demand lodging, food, or baggage from private residences.

Constitutional Principle Against Vengeance

• The constitution asserts "No person may take justice into their own hands."
• Individuals must resort to competent courts.

Principles of the Administration of Justice

• The administration of justice should be impartial, prompt, complete, and gratuitous.
• Reality does not align, as legal processes are lengthy and costly.

Importance of Reporting Car Theft

• To avoid responsibility for the illicit actions the perpetrators may commit with the car.
• To enable insurance payment if insured.

Prohibition of Imprisonment for Civil Debts

• Imprisonment isn't allowed for debts of a purely civil nature.
• Jail time is reserved for those who commit crimes punishable by imprisonment.

Constitutional Principles for Prisons

• Prison organizations should emphasize work, training, and education for social rehabilitation.
• Separate facilities are necessary for women and young offenders.

Time Limits for Detention

• The Public Ministry/Prosecutor's Office has 48 hours, after which the detainee must be released if insufficient evidence exists to prove involvement or culpability.
• Judicial Authorities must either justify the detention with a process-related order or release the detainee after 72 hours from the moment the individual has been made available to the judge.
  • The order must specify the crime, location, time, circumstances of its execution, and evidence indicating the probable involvement of the accused.

Rights of the Accused as Per Article 20, Section B

• Presumption of innocence until proven guilty via a court-issued sentence.
• The Right to remain silent.
  • Authorities will notify the accused for the reasons for the detention and the right to remain silent.
  • Silence cannot be used against them in court.
  • Incommunicado detention, intimidation, or torture are illegal and punishable by law and confessions without a defense attorney are inadmissible.
  • The accused must be informed the accusations and their rights at the time of detention and when appearing before the Public Prosecutor or judge.
  • In cases of organized crime, judicial authorities can keep the accuser's identity confidential.
  • The Law will establish benefits for the accused, processed, or sentenced who provides effective help for the investigation and persecution of crimes regarding organized crime.
  • The accused has the right to offer witnesses and evidence.
    • Given reasonable time and legal help to secure testimonies.
  • The accused has the right to a public trial by a judge or tribunal.
    • Publicity is limited to protect national security, public safety, victims, witnesses, minors or to prevent the disclosure of protected information.
    • Proceedings carried out during the investigation phase can hold evidentiary value if they cannot be reproduced in court.
  • All information must be facilitated to support the defense.
  • The accused and their defender can access investigation records when the accused is detained or is expected to be interviewed.
  • They can consult those records with due opportunity to prepare the defense to their first appearance before a judge.
    • After this point, keeping the investigation confidential is not allowed while still protecting the success of their investigation.
  • The accused will be judged within four months for crimes with a maximum penalty of two years imprisonment if the penalty is more than a year.
    • The prosecution can request a longer term.
  • The accused has a right to adequate legal defense via freely chosen attorney, even from the time of detention.
    • If the accused cannot name an attorney the judge will name a public defender.
  • The accused has the write for their defender to be present in all acts of the process.
  • Imprisonment or detention cannot be extended due to the non-payment of defense attorney fees or any kind of analogue cause.
    • Preventative imprisonment can not exceed the legal maximum punishment for the crime.
    • The sentence should not be over two years regardless of the crime.
    • Time in detention counts as part of the imprisonment term.

Silence During Interrogation

• When appearing to testify before the Prosecutor's Office, lawyers advise listening to the accusation and remaining silent.
• They advise that you should invoke your right to remain silent and state that you will present yourself to declare within a few days.
• At times, avoidance of citations is recommended.

Legal Terms: "Foja" and "Compulsa"

• “Foja” means "sheet"
• “Compulsa” means comparing a copy with its original.

Court Rulings

• The two possible rulings in a trial are guilty/convicted, or absolved/innocent.

Legal Terms: "Fortuito" and "Doloso"

• "Fortuito" means accidental.
• "Doloso" means intentional.

Legal Term: "Perito"

• A "Perito" is an expert in a science, technique, or knowledge area.
• Examples include: Ballistics, document analysis, handwriting analysis, traffic, mechanics, psychiatry, medicine, accounting, and physics.

Intervention of a "Perito Tercero en Discordia"

• This expert intervenes if two experts contradict each other's opinions.
• The Judge appoints them to resolve the dispute.
• The Judge reviews the material and listens to the experts.

Proof of Legal Representation

• An individual demonstrates their status as a company's legal representative with a notarial deed or power of attorney.

"Media Filiación" Definition

• It refers to the description, features, or physical characteristics that make a person identifiable.

"Bienes de Fortuna" Definition

• It refers to a person's material wealth, including real estate, assets, money in the bank, and valuable movable property.

Movable vs. Immovable Property

• Movable property is transportable: cars, jewelry, computers, phones, stocks.
• Immovable property: land, buildings, houses and real estate.

Principle of Presumption of Innocence

• It is a human right and legal guarantee that everyone is considered innocent until proven guilty.

Obtaining Testimony

• Authorities, courts, or prosecutors can subpoena individuals to testify by providing their full name and address..

Understanding Indirect/Leading Questions

• These are questions asked by the opposing party's attorney to a witness, with the goal of revealing bias or the complete truth of what occurred.

Witnesses: "De Cargo" and "De Descargo"

• "De cargo" refers to witnesses for the accusing party or the plaintiff.
• "De descargo" refers to witnesses for the defendant.

"Litis" in a Trial

• It is the essential part of the controversy.
• It is the primary point in dispute, where one party affirms something and the other denies it.

Initial Judicial Determination

• The first thing a Judge determines when a lawsuit is filed is whether to admit it or to prevent action by the plaintiff.

Preventing a Lawsuit

• A Judge can prevent a plaintiff from proceeding if something important is missing or needs clarification.
• Once the issue is sorted the lawsuit is approved.