Amparo Trial
The Amparo is a federal trial under Mexican law where a complainant alleges violation of her constitutional rights by an authority. It is an individual or a corporation against the Government.The following is an outline of the Amparo trial.
The Amparo trial is conducted and decided by a federal district judge (Juez de Distrito), federal magistrate (Magistrado) or Supreme Court justice (Ministro).
Amparo Trial (A.T.) proceeds against almost any act of authority, from any branch of government. Exceptions: Supreme Court resolutions, Resolutions given in any A.T., Electoral and Political resolutions & Military orders given to Armed Forces members.
History
1847. Mariano Otero. A.T. into the Federal System in that year’s Constitutional Reform
Both Rejon and Otero are considered the Fathers of the Amparo Trial
Recently theà Supreme Court presented a project of reform for a new Amparo Trial. Congress is still considering it, but it is not on the immediate legislative agenda
- Complainant’s request. An A.T. can be started only ex parte; not ex oficio A.T.’s (but simplified requirements for emergencies)
- Personal and direct harm. Act of authority must affect complaiant’s Constitutional Rights. No personal and direct harmà A.T. is dismissed
- Definitivity. Before A.T.à exhaust ordinary means of defense. But see exceptions (e.g., risk of deprivation of life, exile, infamous, cruel or unusual punishment, mutilation, torture or lashing)
- Relativity. Amparo sentence only benefits the complainant. No general – erga omnes – effects. This is called the “Otero Formula.” Exception: jurisprudencia obligatoria
- Strict right. Amparo requestà analyzed as submitted by complainant, and technical requirements go under strict scrutiny. Court is not allowed to emend complainant’s deficiencies.Exceptions where the court may amend:
- Action based in a law that has been declared unconstitutional
- Criminal cases
- Agrarian law
- Labor law
- When complainant is a minor or incapable
Parties
• Responsible Authority (Autoridad responsable). Federal, State or Municipal agency from any branch of gov’t who is accused by the complainant as the author, executor or author and executor of the claimed action
• Third affected (Tercero perjudicado). A person not the complainant, who could be affected if the latter wins the A.T. Not all A.T.s have a third affected as a party (e.g., no 3rd affected in A.T. vs. arrest warrant)
• Federal Prosecutor (Ministerio Público Federal). Role à to ask for the respect of the constitution
Claimed Act
Concrete act of authority that attacks a Constitutional Right. This act can be:
• Negative: an omission; a gov’t agent isn’t doing something it should, therefore affecting complainant’s constitutional rights
Remember exceptions:
no A.T. vs. resolutions by: S.Ct., A.T. tribunals, Electoral and Political matters or Military orders given to Armed Forces members
Also, see ripeness and mootness issues
Indirect Amparo
Generally handled by a District Judge
(1)Against unconstitutional laws, treaties, decree or rules.
(2)Against actions of members of the Judicial Branch
(3)Against third non-parties
(4)Against laws or acts that restrict State sovereignty or interferes with Federal competence
Appeal against final decision in Indirect Amparo: Revisión
Direct Amparo
Direct Amparo can be requested against any final sentence or resolution that concludes a trial or trial-like proceeding
Difference from Indirect Amparoà Direct Amparo proceeds against final decisions that are otherwise res judicata
Only the highest courts handle Direct Amparos: Collegiate Circuit Court and Supreme Court
Unconstitutional laws and treaties can also be attacked through Direct Amparo
Generally, No Revisión in Direct Amparos
Stay Order
Court order that stops the execution or continuance of execution of the gov’t act
Granted at claimant’s request or ex officio in extraordinary cases
This order binds Responsible Authority to effectively cease and desist the execution of the Claimed Action as long as the Stay order is in force
Stay order unavailable in some cases (e.g., no stay order to keep a prostitution house open)
Complainant must give a bond for the possible damages to Third Affected if Amparo is denied. Third Affected can then give a bond – a counter-bond?, and Stay order will be revoked. This is good business for bondmen!
No bond is required in criminal cases, but different requisites are imposed. And Stay Order does not impede the arrest against most serious crimes like murder, rape, drug traffic, et cetera.
Violation of a stay order is a Federal Crime
Final Resolution
Amparo can be granted or denied, depending on whether the complainant proved or not that Claimed Act violated her Constitutional Rights
When granted, Court can remand, modify ex novo or cancel the Claimed Act
In Indirect Amparo, this sentence can be appealed through Revisión
A.T. does not seek economical compensation, but Substitute Execution allows to liquidate damages when execution is impossible or affects the social interest
Conclusions
• The Amparo is a federal trial
• Its goal is to reinstate the claimant in the same position as she was before the violation of her constitutional right
• It does not seek monetary compensation, but $ can be granted in exceptional cases. Who pays? The gov’t
• Bind authorities to the observance of Human Rights
• It is an effective means to prevent and stop abuse of discretion by authorities, and a working protection for Human Rights
• This is a slight view of this Institution. Amparo Trial is vast, very technical, specialized and elaborated
• It is
posted by Mastropiero @ 10:39 AM
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