BASHAM NEWS

The SCJN invalidates a reform that punished tax crimes with unofficial preventive imprisonment.

Mexico City, November 28, 2022.

On November 24, 2022, the Plenary of the Supreme Court of Justice of the Nation resolved the unconstitutionality actions related to various legal precepts that qualified various crimes as official preventive detention and organized crime, in the sense of declaring their invalidity.

First, Articles 167, paragraph seven, sections I, II and II, of the National Code of Criminal Procedures, and 5, section XIII, of the National Security Law were discussed. invalidated the aforementioned articles, by means of which it was qualified as "threats to National Security" and, therefore, the crimes of smuggling, tax fraud and its equivalents, as well as crimes related to tax receipts, merited official pretrial detention.

It also declared the disability of Article 2, first paragraph, sections VIII, VIII Bis and VIII Ter, of the Federal Law against Organized Crime, because it was considered that the legislator violated the principle of last ratio of the Criminal Law, by including conducts that are not supported by the constitutional logic itself. It should be noted that the article in question typified the crime of delinquency when three or more persons were organized for the purpose of committing the crimes of smuggling, tax fraud and its equivalents, as well as crimes related to tax receipts.

On the other hand, derived from the declaration of invalidity of article 167, paragraph seven, sections I, II and II, of the National Code of Criminal Procedures, the effects were extended to those norms that present a dependency with respect to the invalidated norm. For such reason, the invalidity decreed was extended to expel from our legal system Article 187, second paragraph, last part, of the National Code of Criminal Procedures, in the portion that refers to "the law that refers to the "criminal procedure".Neither shall reparatory agreements be applicable for the hypotheses foreseen in fractions I, II and III of paragraph seven of article 167 of this Code."In addition, article 192, third paragraph of the National Code of Criminal Procedures was invalidated in the portion "The conditional suspension shall be inappropriate for the hypotheses provided for in Sections I, II and III of Article 167 of this Code.".

 Lastly, the Plenary of the Court recognized the validity of the first paragraph of Article 113-Bis of the Federal Fiscal Code, which provides as a crime the issuance, sale, purchase or acquisition of tax receipts that cover nonexistent or false transactions or simulated legal acts. The foregoing, since it was considered that it does comply with the extremes required by the principle of legality; that is, it clearly and specifically describes the type of conduct and the conditions from which its unlawfulness is inferred.

 It should be noted that the final version of the sentence is still pending, that is to say, the final version of said sentence has yet to be formalized and published, for which reason, if there is a modification in the draft sentence by virtue of which the aforementioned was resolved, we will be informing you as it is such a relevant issue in our country.