SCJN’s Big Step towards Legal Marijuana in Mexico

5 11 2015

SCJN’s First Chamber

Mexico’s First Chamber of the Supreme Court of Justice (SCJN) ruled yesterday, on an Amparo trial,[1] that an absolute prohibition on self–consumption of marijuana is unconstitutional. A majority of Ministros voted 4-1 to find for the four plaintiffs[2]—members of the NGO Sociedad Mexicana de Autoconsumo Responsable y Tolerante (SMART) created ex professo to move the Mexican government and courts to legalize self–consumption of marijuana—who now can use marijuana for recreational and ludic purposes, and also plant, cultivate, harvest, prepare, poses and transport marijuana, only for self–consumption—expressly excluding any act of commerce or profit.

Since 2009 possession of illegal drugs—including marijuana—in Mexico for self–consumption is not as crime,[3] but before the SCJN ruling, the law did not provide for a mechanism for allowing marijuana consumers to grow the drug they would consume. Also, commercialization of marijuana remains prohibited in Mexico.

Although the SCJN ruling only benefits the four plaintiffs in the case, it lays the path for future challenges. The majority of the First Chamber of the Highest Court held that an absolute prohibition on self–consumption of marijuana violates the right to free development of the personality.[4] The reasoning of the Court should be followed by lower courts with similar cases.

The impact of this and future similar rulings in Mexico’s society is uncertain. The apparent winners are progressives, recreational users and advocates for broader liberties. The issue, however, is more complex, and the legal component is just a small fraction of it.

The SCJN decision expressly excluded for–profit enterprises—kilometers away from the Colorado approach—yet undoubtedly opens an unexplored vein that may be beneficial or not to Mexico as a country.

***

[1] Amparo trials are an avenue for challenging unconstitutional actions (or omissions) by the government and its agents. Amparo rulings, however, have a limited effect: they generally only benefit the parties involved in the dispute. Per Amparo trial’s principle of relativity—also known as Fórmula Otero, named after Amparo’s founder Mariano Otero—the Amparo court order does not have effects erga omnes.

[2] None of the four plaintiffs, Josefina Ricaño de Nava, Juan Francisco Torres Landa Pablo Girault Ruiz and Armando Santacruz Gonzalez, are marijuana users. The test case seeks to diminish the power of the drug cartels and improve overall public safety in Mexico, as the mission of México Unido contra la Delincuencia calls for. See http://goo.gl/DMLs0R.

[3] See Ley General de Salud, as amended, article 479, available at http://goo.gl/tCdH2z.

[4] See México legaliza la marihuana con fines recreativos, El Pais, November 5, 2015, available at http://goo.gl/L3pxuJ.

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Game Changer in Tort–Like Liability in Mexico? MXP$30 Million Judgment vs. Hotel for Wrongful Death

27 02 2014

 

 

The First Chamber of the Suprema Corte de Justicia de la Nación (SCJN) issued a $30 million pesos judgment (approx. $226,000 USD) against Acapulco’s Mayan Palace hotel for the moral damage caused to the parents of a guest that died by electrocution. The SCJN issued a press release detailing the decision.

Mexico does not have a tort system per se, as understood in common–law countries like the United States. Instead, civil codes in Mexico generally provide for a twofold remedy for prevailing parties claiming damages caused by illicit conducts not derived from contracts—extra–contractual responsibility: an award for material damages, and an independent award for moral damages. Recovery, however, has been historically low (between $20,000-$200,00 USD), and this is the main reason as to why there has not been a specialized bar for this type of cases. But the instant case can be a catalyst for change.

Material damages under Mexican law can compare to actual damages under the U.S. tort law system. In wrongful death cases, the civil codes of Mexico sets a cap in recovery, taking as base the Federal Labor Law, ranging, depending in the specific jurisdiction, between $20,000 and $300,000 USD (thanks to an amendment to the Federal Labor Law in late 2012 that in some cases increased almost sevenfold the recovery for material damages

Moral damage (daño moral) is a prejudice suffered in the moral patrimony of the victim, such as affection for others, right to privacy, honor, esteem for certain goods, decorum, prestige, reputation and physical integrity, among others. Moral damages are “awarded to compensate the victim for intangible losses suffered due to the defendant’s wrongful misconduct.” Zamora et al., Mexican Law 528 (Oxford University Press 2004).

Some local jurisdictions in Mexico limit the amount of recovery for moral damages (sometimes at 20%), but the Federal Civil Code and most of the states do not impose  a cap or limit. In the jurisdictions with the latter rule, theoretically one could get a judgment of $1 for material damages, and $1,000,000 for moral damage.

But even in jurisdictions where the civil code did not impose a cap in the recovery for moral damages, courts in Mexico rarely awarded serious amounts in wrongful death cases. Until yesterday’s ruling by the First Chamber of the SCJN.

From the SCJN press release, we know that the $30 million pesos were awarded to the surviving parents of the decedent for what it considered negligent conducts of the hotel company.

Per the court’s press release, the decedent fell into an artificial lake in the premises of the hotel, electrified due to a short-circuit in a water pump.

Mayan Palace in Acapulco, MX

 

The SCJN found that the hotel lacked qualified personnel to respond to the emergency, did not offer an adequate medical attention, and did not provide with a dignified treatment to the relatives of the victim. All this translated into a violation of the law, and a breach of their general duties of care vis–a–vis their guests.

The ruling incorporated the concept of “social retribution”—a reflection of societal disapproval towards the actions of the defendant, and a dissuasive element for future similar conducts. This aspect of the ruling is relevant because Mexico does not contemplate punitive damages, and some of the elements of “social retribution” advanced in the sentence reminiscence of components of U.S.–style punitive damages.

The judgment, coming from the SCJN itself, is final and not subject to appeal.

Lawyers and law firms in Mexico should start to look at tort–like cases, aim not only for an award for material damages for their clients, but for an award–on–steroids for moral damage.





When Timeshares in Mexico Go Sour: #PROFECO

23 11 2012

Punta Maroma, Riviera Maya, Mexico

While vacationing in beautiful Puerto Vallarta, Mexico, and without knowing exactly how or why, you wake up one beautiful morning looking at the Pacific Ocean, with a contract for timeshare worth more than what you can afford at your room desk. With your signature on it. Is there a way out? Maybe.

 

Beaches and coastlines in Mexico are a dream: pristine, warm, fun, exciting. Tourism is a growing industry, and sand and sea account for a good part of it. It is only natural that tourists—national and international—want a piece of paradise.

 

Timeshares are, per this definition, “a form of shared property ownership […] in which rights vest in several owners to use property for a specified period each year. (Timeshares in Mexico probably follow a figure different from property ownership, as foreigners are forbidden from owning land for residential purposes within the “restricted zone”—a stretch of 100 kilometers from the border, and 50 kilometers from the beach; rather, a fideicomiso is normally created.)

 

Visiting tourists are the natural candidates to buy timeshares. Developers know it, and they often hire salespeople, known for their aggressive sales techniques. Buyer’s remorse is very common in this situation, either by a genuine cognitive dissonance, or because the decision was made under false pretenses, coercion or fraud.

 

If you are thinking on buying a timeshare, or just—against your best judgment—bought one and want out, Mexico has a federal agency in charge of protection of consumers: the Procuraduría Federal del Consumidor, PROFECO (twitter: @profeco). On their English version webpage PROFECO has a link to a 2-page pamphlet on the issue, entitled “Take Your Time When Buying a Timeshare.”

 

I recommend the pamphlet because it contains advice on what to do before buying, basics of timeshare in Mexico, selling strategies normally used, and how to change your mind after signing the contract.

 

Per the Ley Federal del Consumidor, Mexico’s federal act on consumers’protection, the buyer of a timeshare has 5 days to cancel the contract after signing it. Sellers sometimes refuse to acknowledge this right, or do not accept the cancellation. PROFECO’s recommendation on “Take Your Time When Buying a Timeshare,” is to notify the developer by email and certified mail, creating a paper track of the timely cancellation. The law calls for a full refund without any cancellation penalties.

 

If the developer resists, you can contact PROFECO at extranjeros@profeco.gob.mx for orientation. If necessary, you can lodge a formal complaint with PROFECO.

 

Next time you are offered a timeshare—in Mexico or anywhere else—do your homework, buy if you really want, and if you repent, at least in Mexico, know that you have 5 days to cancel and get a refund.

 

@ignaciopintoesq





NY courts to require 50 hours of pro bono work before getting licensed. How about foreign-educated lawyers taking the bar exam?

2 05 2012

(This post is not about Mexican law, but deals with the New York bar exam, and how it could affect foreign-trained lawyers (FELs) that traditionally sit to take the exam (I was one of the nervous, exhausted FELs that took it in 2007).)

The ABA Journal reported that New York will require “would-be lawyers to perform 50 hours of pro bono before they can get a law license.” NY will take the lead in the pro bono debate with the measure, as reported by the New York Times. The prestigious newspaper endorsed the measure in one editorial.

We know lawyers generously provide thousands of pro bono hours, all over the country, in several different areas of law. Noting on the importance of the topic, the ABA General Practice, Solo and Small Firm Division’s  acclaimed magazine, GP Solo, dedicated their January/February 2012  issue to that topic. On it. I even proposed that pro bono work is not only good for the soul, but also good for business (Mexican masked warrior photo included).

The forthcoming new New York rule on pro bono, in my opinion, is good, and pretty common in other countries (in Mexico, for example, all college students -not just lawyers- must perform 480 hours of community work to graduate and get licensed!).

However, I wonder how will this new yet to be drafted rule work for foreign-educated lawyers (FELs) sitting for the NY bar exam.

NY is one of the most generous states when it comes to letting FELs sit for the bar exam. The NY bar allows law graduates from common law tradition countries to take for the bar exam, without much trouble. Law graduates from non-common law countries can also sit for the exam if they earn an LLM at an ABA-accredited law school.

Would FELs be required to complete their 50 pro bono hours during their LLM (it is plausible)? How about those FELs from common-law foreign countries that do not have to take classes (LLM) in US soil? Will the pro bono hours done at their countries (if any) count towards the 50 hours now to be required in NY?

The new rule on pro bono, in my opinion, is good. As an attorney first licensed in Mexico and then, after an LLM at UHLC, in New York, I appreciate the state’s openness to allow foreign trained lawyers to test their capabilities by sitting to take the bar exam. Hopefully NY courts will include in their new pro bono rule some option for FELs.





My Article on Pro Bono & Why It Is Good for Business (picture of El Santo included)

2 02 2012

The Good Fight is Good Business (Photograph by Gerardo Almaguer)

ABA’s GP Solo Magazine was kind enough to publish on their Jan./Feb. 2012 issue a brief article of mine on why doing pro bono work is not only good for the soul, but also good for business. And it includes a picture of El Santo, Mexico’s most-famous wrestler.

Here is the text:

The Good Fight is Good Business

El Santo (Spanish for “The Saint”) was Mexico’s most famous masked professional wrestler and one of its biggest cultural icons from his professional debut in the 1940s until his death in 1984. He was also a big movie and comics star, fighting against vampires, monsters, zombies and foreign secret agents. The legend of El Santo is still alive in Mexico. Yet El Santo was no Saint: he made his rivals suffer on the ring and in his movies and comics, and his character was often portrayed as a jet–setter living the nightlife. 

Like El Santo, I am no Saint. I am a solo practicing immigration and Mexican law in Houston, TX. And although I performed many hours of pro bono work, it was not pure altruism. In the process of undertaking these many (many) hours of  pro bono service, I received tangible and intangible benefits.

There are many reasons to do our share of work pro bono public (for the good of the public): giving back to society, helping the needy, making an impact on the lives of the recipients of our pro bono efforts, and, in the words of Jack Eisenstein, a fellow member of the ABA’s SoloSez e–mail listserve, “that fuzzy feeling you get from helping people and using your skill set for the forces of good.”

I would add one more motivation to the list: It is good for business. And I don’t mean as a bragging tool (the way some firms use it) but as a source of experience, networking, referrals and goodwill among recipients of the pro bono service.

I do most of my pro bono work through the Consulate General of Mexico in Houston. I sometimes give workshops on immigration law to Mexican nationals on the premises of the Consulate, and I regularly offer legal orientation to the public (also in the Consulate building) on immigration and Mexican law matters.  This commitment to the community serves my professional practice in several ways.

What do you get for your practice?

  • A source of referrals and goodwill. Pro bono work is a great, free marketing tool. Pro bono clients are generally thankful for the attorney that listened to them and offered a piece of advice, and most of them will recommend you with family and acquaintances who need a lawyer.
  • Some paying clients. Some of those who do not qualify for free representation under the guidelines of the host organization or need help beyond the scope of the pro bono service offered may retain your services.
  • Practice opportunities. Some of the most challenging cases I had to study came from pro bono clients. On occasion, the complexity calls for study and creative thinking for finding a viable solution.
  • Access to more experienced attorneys. It is likely that other lawyers working at the same or similar institution where you do your pro bono will be more than willing to share knowledge and advice. This may prove more valuable to new lawyers, but it is sure to be helpful to more seasoned attorneys as well.

Doing pro bono work is a win–win for all parties involved: The public gets quality legal guidance from a committed professional; the host organization fulfills its goals; and we, the lawyers offering our time and talents make a difference one client at a time.

Once you decide to do some type of pro bono work, how do you get started?

  1. Define what type of pro bono service you would like to sign up for: a project directly in your practice area, one involving a type of law you may be interested in developing later, or even a collaboration in an area la law you had a passion for but never developed for varied reasons.
  2. Research organizations in your area that regularly work with attorneys doing pro bono work: local bar associations, charities, law schools, NGOs. Then think outside the box (e.g., consulates are always in need of pro bono lawyers willing to assist their nationals). The ABA Standing Committee on Pro Bono & Public Service has an extensive, state–by–state, directory of pro bono programs (130 institutions are listed as of August 30, 2011), and is available at http://tinyurl.com/probonopublic).
  3. Make a plan that includes an estimate of pro bono hours you are willing to put in. Do not overreach. Beyond all the positives of pro bono work, we still have to make a living.
  4. Approach your target organization. Ask for their mission, rules and requirements, support and expectations. Announce your goals and needs.
  5. Start your pro bono service. Commit and deliver. Be ready to immerse yourself in a rewarding and enriching journey.

Pro bono work is good for the soul, good for business, good for society, and good for the recipient. And sainthood is not a requirement.

You can read The Good Fight is Good Business here.

Thank you, GP Solo Editor-in-Chief Jeffrey Allen, Ass’t Director and Issue Editor Joshua Paulin, and Editor Robert Salkin.





Mexico’s SCJN: Unconstitutional and Discriminatory to Exclude Naturalized Citizens from being Prosecutors, Clerks and Investigators in Mexico City

10 01 2012
Plenary Room. SCJN en banc sessions are held here.

Plenary Room. SCJN en banc sessions are held here.

The Suprema Corte de Justicia de la Nación (SCJN), Mexico’s highest court, ruled on Monday that three articles of the Organic Law of Mexico City’s Attorney General’s Office (LOPGDF, Ley Orgánica de la Procuraduría General de Justicia del Distrito Federal) unconstitutionally barred Mexicans by naturalization from becoming public prosecutors (Agentes del Ministerio Público), prosecutor’s clerks (oficial secretario del ministerio público) and prosecutor’s investigator (agente de la policía de investigación). The case was initiated as an action of unconstitutionality (acción de inconstuticionalidad) by the Procuradora General de la República, Mexico’s Attorney General.  Good job, SCJN!

The SCJN en banc was one vote short from unanimity (10-1). The transcript of Monday’s session shows that the Ministros considered the rule to be discriminatory and beyond any reasonable purpose. Ministro José Ramón Cossío Díaz reminded the Court that the constitutional test rests on whether the discrimination serves a valid purpose, and that the case at hand did not.

The Constitución Política de los Estados Unidos Mexicanos (CPEUM, Mexico’s federal constitution) does limit naturalized citizens from being appointed or elected to some public posts. Naturalized citizens in Mexico cannot be President (only Mexicans by birth, son or daughter of Mexican mother or father), congressperson, senator, cabinet member, Ministro of the SCJN, Attorney General, among other public positions. But in those cases, at least theoretically, the discrimination serves a valid purpose (and the exception is on the text of the constitution itself); extending the rule to prosecutors, their clerks and investigators does not.

The SCJN got it right once more. Naturalized citizens generally enrich and strengthen the fabric of a nation; many countries – like the United States – have a long-standing tradition of welcoming new citizens. Mexico may not be a destination for naturalization as prolific as other places yet, but it surely gets the benefit of having new citizens by will (or, as this blogger elegantly puts it, citizens by conviction); I happen to know a fine example: an extraordinary Mexican by naturalization that makes the life of Central Mexico brighter after moving there some years ago after successfully practicing law in the Midwestern United States.





New Bill to Repeal Current Federal Code of Criminal Procedure: Federal Oral Trials in Mexico Ad Portas!

30 09 2011

Courtroom in Chihuahua, Mexico

Last week Mexican President Felipe Calderon introduced a bill in the Cámara de Diputados  repealing the current Código Federal de Procedimientos Penales (CFPP), Mexico’s Federal Criminal Procedure Code, and substituting with a new code that will allow the country to transition towards the new Criminal Justice System based in oral trials.

Article 20 of the Constitución Política de los Estados Unidos Mexicanos (Political Constitution of the Mexican United States, CPEUM) already mandates oral criminal trials, and the country is in a transition period.

The Suprema Corte de Justicia de la Nación (SCJN), Mexico’s highest court, already has oral, televised sessions. Some states in Mexico-like Chihuahua and Nuevo Leon-also have oral trials for criminal matters.

President Calderon’s bill, if enacted, will implement the constitutional mandate in federal criminal cases.

The proposed new CFPP really is a watershed for criminal trials, developing an accusatory, adversarial system. The fundamentals of the code include:

  • Orality. The fundamental feature of the new system, as advanced by the proposed CFPP is that all hearing and proceedings must be done orally, not in writing
  • No ex parte communications with the court. Until now, ex parte communications are admissible, and even expected, to make up for the lack of direct contact of the judge with the cold, written process model in force; oral trials would allow the court to know the evidence first–hand, without the need to talk to the parties individually
  • Technological media will be used to record proceedings, notify parties and admit evidence. E–filing will be available at some point
  • Non-prosecution cases (no ejercicio de la acción penal) can be accessed by the public. Up until now, Access to investigations is limited to the authorities, the accused, their victims and representatives
  • To highlight the adversarial nature of the new system, only evidence offered by the parties can be considered by the courts. Until now, judge can introduce evidence under certain circumstances to better clarify the case
  • Only licensed attorneys can represent a defendant as their defender. It may sound like an obvious proposition, but until now, both attorneys and a “trusted person” (persona de confianza) who is not authorized to practice law can defend an accused in court
  • Judges can assist neither the prosecutor nor the defendant on their shortcomings. Until now, the courts can make up for the deficiencies of the defendant. If enacted, the new CFPP will treat all parties as true adults
  • The new federal criminal procedure has the following stages:
    • Initial investigation, that goes from receiving the complaint until the exercise of the criminal action (ejercicio de la acción penal) with a court
    • Process per se, with the following sub–steps:
      • De control previo, (of previous control), that goes from the time when defendant is under the court’s custody, until the auto de vinculación a proceso (AVP, writ of suject to process)
      • De investigación formalizada (of formalized investigation), from notification to defendant of the AVP until expiration of the period to formulate the accusation
      • Intermediate, from the formal accusation until the writ of initiation of oral trial
      • Oral trial, that goes from the notice of initiation of oral trial until sentencing
  • Second instance (appeal, etc.)
  • The new code calls for 2 different judges to handle the cases:
    • The juez de control (judge of control), that resolves all provisional measures before the oral trial, and
    • The juez de juicio oral (judge of oral trial), that would control the trial hearings where evidence will be offered, and afterwards will decide on the merits of the case
    • Judges can have jurisdiction over a defendant for security reasons: if it is too risky to have a defendant in a particular area or jail, the case can be transferred to a different federal judge
    • Novelties in evidentiary issues:
      • Evidence can only be introduced at the oral trial
      • Courts are free to give weight to evidence at discretion (as long as it is justified)
      • Evidence obtained in violation of human rights is void. CFPP introduces the Mexican “fruit of the poisoned tree” theory, with limitations similar as those developed in US courts
      • Wiretaps by one of the parties to a communication are valid
      • Evidence obtained in undercover operations are legit
      • Parties can stipulate on non–controverted probatory issues (acuerdos probatorios)
      • Sentence is imposed after a post–conviction hearing
      • Legal entities (corporations, etc.) would be criminally liable for actions of its members
      • The new accusatory, oral system would require more court time for each case; the system could not work out without effective options to terminate proceedings in an anticipated way, without the need to go through all steps of the process. The new CFPPwould include the following options to achieve this goal:
        • Reparation agreement: in some cases, the defendant may execute a reparation agreement with the victim that includes undoing the wrong, and upon the court’s authorization, could avoid criminal liability
        • Simplified process: the defendant, upon admission of guilt and guaranteeing reparations for the victim, can get its punishment reduced up to 25%. It only applies for crimes with terms of imprisonment of no more than 4 years, for crimes of low social impact.
        • Conditional suspension of the process: another option for the defendant, subject to the victim’s approval, admission of guilt and requiring guarantee of reparation, conditional suspension of the process is available for most crimes with a punishment of more than 4 years of prison; this option suspends the process between 1-3 years. If the defendant is successful in following–up with the suspension for the period determined by the court, his case will be dismissed with prejudice, and the criminal action would extinguish; in this case, civil liability may subsist regardless
        • Abbreviated process is available upon request of the prosecution when defendant admits guilt, in all crimes that do not qualify for simplified process or conditional suspension of the process. Victim’s approval is required. The incentive for the defendant: up to 25% of punishment can be reduced
        • Victims are granted many rights, some already in the current CFPP, some also in the CPEUM:
          • Victims would be able to exercise a private criminal action (acción penal por particulares), fundamentally changing the perennial monopoly of the criminal action historically held by prosecutors
          • They can oppose to the simplified process and the abbreviated process
          • Non–Mexican victims will get assistance in immigration matters