LEGAL MATTERS

Frequently asked question on Lawsuits
and Amparo Procedures in México - Part II
By: Jorge Rodriguez and Manuel Valdez. • September 2009

Is the amparo procedure a lawsuit?

Based on the type of act claimed on the amparo petition, there are two different procedures to obtain a “writ of amparo”: i) the first one, called “amparo directo”, in general terms is the one requested against all judicial decision in all kinds of lawsuits, or the final ruling on an administrative proceedings, and ii) the second, called “amparo indirecto”, and in general terms is the one intended against the rest of the wide range of authority acts that does not constitute the final judicial decision or the final ruling in an administrative proceeding.

In fact, only the “amparo indirecto” has the structure of a regular lawsuit with the four basic phases of any Mexican judicial proceeding: exposition, demonstration, summary and ruling. While the second kind of amparo procedure, the “amparo directo”, is more similar to an appeal process: it has an exposition phase, but does not require much demonstration, since the main objective of the claimant is to obtain relieve form the constitutional violations performed by the authority in the final decision or the unlawful acts performed during the trial that have effect on the final decision, and those violations can be easily demonstrated by means of the trial file.

Is the “writ of amparo” the Mexican equivalent to the “writ of habeas corpus” in the USA legal system?

The amparo procedure, under Mexican law, has a much broader scope and field of application than the Anglo-Saxon writ of habeas corpus, since it protects men not only against illegal arrest but against violation of any human rights granted in the Constitution and it is also a remedy to the encroachment of the Federal authorities on the jurisdiction of the states and vice versa.

Nevertheless, when the amparo is requested against unlawful or unconstitutional acts that affect or treat to affect human liberty, the writ of amparo issued by a Mexican Federal Court has a very similar effect to the writ of habeas corpus issued by a U.S. competent Court.

What other rights can be preserved by means of a writ of amparo?

Depending on the kind of authority act that the relief is been seek by the claimant, the Doctrine has classified the amparo procedure in Mexico in the following groups:

1).- “Amparo libertad”:
       For the protection of personal freedom, equivalent to the habeas corpus writ
2).- “Amparo contra leyes”:
       For the judicial review of the constitutionality of law and statutes;
3).- “Amparo casación”:
       For the judicial review of the constitutionality and legality of a judicial decision;
4).- “Amparo administrativo”:
       For the judicial review of administrative actions;
5).- “Amparo agrario”:
       For the protection of peasants’ rights derived from the agrarian reform process.

What are the main differences of the amparo process with the rest of lawsuits?

All amparo trials take place before a Federal Court House. Local judges from the 32 states have no jurisdiction for ruling on amparo petitions (at least not in the definitive decision since the Amparo Law did grant them some limited faculties on urgent cases to rule, for example, over preliminary protection of personal liberty).

The procedure is a very brief and efficient one (average of 6 months for amparo indirecto and 3 months for amparo directo), compared with most of the other lawsuits that take at least an average of 2 years to be concluded.

The procedure is preponderantly written (as most of the judicial process in a Civil Law System), but regarding the “amparo indirecto” all the evidence most be presented on an oral and summary hearing called “audiencia constitutional”.

The amparo process does not rest on the civil procedural principle of equity of the parties, since is intended to protect citizens from the arbitrary authorities. That is why some of the procedural rules tend to benefit the plaintiff (examples: (i) In some specific cases the Court House has the obligation to complete a deficient amparo petition; (ii) the thirds parties have 10 days to reply the plaintiff and the authority has only 5 days).

When the claimant requested and certain conditions are given, the amparo judges grant preliminary protection by means of a incident called “suspension incident” that delay the effects of the authority act until the final decision on the amparo is issued.

What are the basic requirements that a claim of amparo should content?

The name and address of the claimant.

The name of possible third parties that can result affected by the resolution of amparo.

The authority appointed as the responsible of the unconstitutional act, from which effects is the amparo relief asked.

The description of such unconstitutional act or law and the telling of the facts that precede his issuance.

The constitutional provisions that the claimant considers violated and the explanation of how does the appointed act violate those constitutional guarantees, also known as “violation concepts” (conceptos de violación).

Does the issuance of a writ of amparo causes some taxation or state costs?

No, the issuance of a writ of amparo does not have costs for the claimant, except for the legal fees of the attorney that advise and represent the claimant on the precedent, and regarding the request of amparo violations of some human rights, there are governmental agencies and pro-bono organizations that provide legal advise free of charge for the people who is not able to afford a lawyer.

The only expense that can be derived from an amparo procedure is the “guaranty of possible damages” (normally a bond issued by a bonding institution) for the third parties involved, that the Amparo Law requires to grant the interim relief of the suspension incident in some specific cases. Email to a friend

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