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On the Mexican Administrative Liability Procedure and Its Challenge

Now that we’ve analyzed the foundations of administrative liability for public servants in Mexico in the entry Administrative Liability of Public Servants in Mexico where I explored, among other things, what constitutes serious and non-serious administrative offenses, who investigates and sanctions them, and more. It’s time to complete the study of the General Law on Administrative Liability and examine the administrative liability procedure and its legal remedies.

In this post, I will address how the investigating, substantiating, and adjudicating authorities operate, as well as the different types of ordinary and extraordinary legal remedies that both individuals and authorities can file, including those related to the legislation of the state of Chihuahua before the State Administrative Justice Tribunal.

Without further ado, let us begin.

List of Contents

Translation

This is a translation of my entry called Del procedimiento de responsabilidad administrativa y su impugnación

1) The Administrative Liability Procedure

A) Principles and Concept

The administrative liability procedure is the set of actions aimed at investigating and sanctioning public officials or individuals who may have committed serious or non-serious offenses stipulated in the General Law on Administrative Liability.

For the processing and discharge of administrative liability procedures, the principles of legality, presumption of innocence, impartiality, objectivity, consistency, exhaustiveness, material truth, and respect for human rights must be observed.

Furthermore, since penalties are similar to administrative sanctions, the Supreme Court of Justice of the Nation has held that, to the extent possible, the guarantees and principles of criminal law are applicable to administrative sanctioning law. The following judicial criteria are an example of this:

ADMINISTRATIVE SANCTIONING LAW. FOR THE CONSTRUCTION OF ITS OWN CONSTITUTIONAL PRINCIPLES, IT IS VALID TO PRUDENTLY USE THE GUARANTEE TECHNIQUES OF CRIMINAL LAW, SINCE BOTH ARE MANIFESTATIONS OF THE STATE’S PUNITIVE POWER[1].

TYPICALITY. THE RELATIVE PRINCIPLE, NORMALLY REFERRED TO CRIMINAL MATTERS, IS APPLICABLE TO ADMINISTRATIVE OFFENSES AND PENALTIES[2].

PRESUMPTION OF INNOCENCE. THIS PRINCIPLE IS APPLICABLE TO THE ADMINISTRATIVE PENALTY PROCEDURE, WITH NUANCES OR MODULATIONS[3].

However, as with everything, this similarity is one of degrees and, therefore, cannot be applied strictly or with the same scope as criminal principles and guarantees in administrative liability proceedings. Proof of this is the recent binding ruling of the Supreme Court of Justice of the Nation, which illustrates how penalties and sanctions, although similar, differ in their degree, since the former can result in imprisonment, while the latter cannot. Therefore, in criminal law, it’s valid to require a technical defense given the dire consequences of the criminal process, while in disciplinary law, it is not.

ADMINISTRATIVE LIABILITIES. THE RIGHT TO AN ADEQUATE DEFENSE IS NOT APPLICABLE TO THE RELATIVE PROCEDURE TO THE SAME EXTENT AS IN CRIMINAL MATTERS[4].

B) Parties to the Process

The parties to the administrative liability procedure are:

I.- The investigating authority.

II.- The public servant or individual identified as the alleged responsible party.

III.- Third parties, who are all those who may be affected by the resolution issued in the administrative liability procedure, including the complainant.

Furthermore, it should be noted that the authority entrusted with the substantiation and, where applicable, the resolution of the administrative liability procedure must be distinct from the authority or authorities in charge of the investigation. To this end, the secretariats, internal oversight bodies, the Supreme Audit Office of the Federation and its counterparts in the states, as well as the accountability units of state-owned productive enterprises, shall have the necessary organizational structure to perform the functions corresponding to the investigating and substantiating authorities, and shall guarantee the independence of both authorities in the exercise of their functions.

C) Enforcement Measures

The substantiating or resolving authorities may use the following enforcement measures to enforce their decisions:

I.- A fine of 100 to 150 times the daily value of the Unit of Measurement and Update, which may be doubled or tripled each time, up to 2,000 times the daily value of the Unit of Measurement and Update, in the event of refusal to comply with the respective order.

II.- Arrest for up to 36 hours.

III.- Request the assistance of law enforcement agencies of any level of government, who must immediately respond to the authority’s request.

2) Precautionary Measures

The investigating authorities may request the investigating or resolving authority to order precautionary measures that:

I.- Prevent the concealment or destruction of evidence.

II.- Prevent the continuation of the harmful effects of the alleged administrative offense.

III.- Prevent obstruction of the proper conduct of the administrative liability procedure.

IV.- Prevent irreparable harm to the Federal Public Treasury, or to the public finances of federal entities, municipalities, mayoral offices, or the assets of public entities.

Notwithstanding the foregoing, precautionary measures may not be ordered in cases where harm is caused to the public interest or public order provisions are violated.

A) Types of Precautionary Measures

The following may be decreed as precautionary measures:

I.- Temporary suspension of the public servant identified as allegedly responsible for the job, position, or commission they hold.

Such suspension shall not prejudge or be indicative of the liability imputed to them, which shall be stated in the resolution decreeing it. During the duration of the temporary suspension, the necessary measures must be decreed at the same time to guarantee the alleged perpetrator’s minimum living standards and those of their financial dependents, as well as those that prevent them from being publicly presented as responsible for the offense with which they are charged.

Finally, it is pertinent to clarify that if the temporarily suspended public servant is not found responsible for the acts with which they are charged, the agency or entity where they provide their services will reinstate them to their rights and cover the salaries they should have received during the period of suspension.

II.- Presentation of original documents directly related to the alleged administrative offense.

III.- A warning of a fine of 100 to 150 Units of Measure and Update to compel the alleged perpetrators and witnesses to appear on the day and time set for the presentation of evidence, as well as to designate an address for any personal service related to the substantiation and resolution of the administrative liability procedure.

IV.- Precautionary seizure of assets; precautionary seizure or intervention of negotiations.

V.- Any other measures necessary to prevent irreparable harm to the Federal Public Treasury or to the public entities, municipalities, mayoralties, or the assets of public entities.

B) Procedure

The granting of precautionary measures will be processed incidentally. The request must specify:

I.- The evidence whose concealment or destruction is intended to be prevented.

II.- The detrimental effects of the alleged administrative offense.

III.- The acts that hinder the proper conduct of the administrative liability procedure or cause irreparable damage to the Federal Public Treasury, or to the assets of federal entities, municipalities, mayoralties, or public entities, stating the reasons for requesting precautionary measures and justifying their relevance.

IV.- Indicate the names and addresses of those affected by the precautionary measures so that, where appropriate, they may be notified of the respective incident.

In this regard, the written request for precautionary measures shall be made available to all those directly affected by them, so that they may state their rights within a period of 5 business days. If the authority hearing the incident deems it necessary, it may provisionally grant the requested precautionary measures in the admission agreement.

3) Evidence

As a general rule, and to determine the truth of the facts, the resolving authorities may use any person or document, whether belonging to the parties or a third party, with no other limitation than that the evidence has been obtained lawfully and with full respect for human rights. However, only confessions by the parties for the acquittal of positions will be excluded.

A) Rules For Evidence Evaluation

Regarding the system contemplated in the law for evaluating evidence, the legislator stipulated the following:

I.- Evidence will be evaluated according to the rules of logic, good judgment, and experience.

II.- The resolving authorities will themselves receive statements from witnesses and experts and will preside over all evidence gathering under their strictest responsibility.

III.- Documents issued by authorities in the exercise of their functions shall have full probative value with respect to their authenticity or the veracity of the facts to which they refer, unless proven otherwise.

IV.- Private documents, testimonials, inspections, expert opinions, and other lawful means of evidence offered by the parties shall only constitute full proof when, in the judgment of the authority resolving the matter, they are reliable and consistent with the known truth and sound reasoning of the relationship between them, such that they generate conviction regarding the veracity of the facts.

V.- Any person identified as responsible for an administrative offense has the right to be presumed innocent until proven guilty beyond a reasonable doubt. In this regard, the investigating authorities will bear the burden of proof to demonstrate the veracity of the facts that indicate the existence of such violations, as well as the responsibility of those accused of them. Those identified as allegedly responsible for an administrative violation will not be required to confess their responsibility or testify against themselves, so their silence should not be considered proof or indication of their responsibility in the commission of the acts with which they are accused.

VI.- Evidence must be offered within the time limits established by law. Evidence offered outside of these periods will not be admitted unless it is supervening evidence, understood as evidence produced after the expiration of the period for offering evidence; or evidence produced before, provided that the person offering it states under penalty of perjury that they had no opportunity to know of its existence.

B) Testimonial Evidence

Testimonial evidence shall be the responsibility of anyone with knowledge of the facts that the parties must prove. Therefore, they are obligated to testify according to the following rules:

I.- The parties may offer as many witnesses as they deem necessary to prove the facts they must prove. However, the resolving authority may limit the number of witnesses if it considers that their testimony refers to the same facts.

II.- The presentation of witnesses shall be the responsibility of the party offering them. They shall only be summoned by the resolving authority when the party offering them states that they are unable to summon them. In this case, the witness shall be summoned by applying the means of coercion mentioned above.

III.-Those who, for reasons of age or health, are unable to appear to give their testimony before the resolving authority will have their testimony taken at their home or wherever they are located, and the parties may attend said hearing.

IV.- The popularly elected representatives, ministers, magistrates, judges of the Judicial Branch of the Federation, magistrates of the Judicial Disciplinary Tribunal, members of the Judicial Administration Body, public servants who are ratified or appointed with the intervention of any of the chambers of the Congress of the Union or the local congresses, the secretaries of the Federal Executive Branch and the equivalents in the federative entities, the heads of the bodies to which the Political Constitution of the United Mexican States grants autonomy, the magistrates, judges of the courts of justice of the federative entities, magistrates of the Judicial Disciplinary Tribunals, the members of the judicial administration bodies of the federative entities, and the heads of the bodies to which the local constitutions grant autonomy, will render their statement by official letter, for which the corresponding questions and cross-examinations will be sent to them in writing.

V.-The resolving authority may freely question witnesses in order to clarify the truth of the facts.

VI.- The questions and cross-examinations posed to witnesses must refer to the administrative offense charged against the alleged perpetrators and to the facts directly known to the witnesses. They must be expressed in clear terms and not be insidious, nor contain the answer. Questions that do not meet these requirements will be rejected, although they will be recorded verbatim in the respective minutes.

VII.- Witnesses will be questioned separately, and the resolving authority must take appropriate measures to prevent them from communicating with each other. Witnesses offered by one of the parties must testify on the same day, without exception, for which days and hours may be designated as closed. The same procedure shall apply to the witnesses of the other parties until all those called to testify have been examined by the parties and the authority resolving the case.

VIII.- When the witness does not speak or read Spanish, the authority resolving the case shall appoint a translator. In these cases, the witness’s statement shall be recorded in Spanish, as well as in the language or dialect of the witness, for which purpose the translator designated by the authority shall be required.

IX.- The questions posed to the witnesses, as well as their corresponding answers, shall be recorded verbatim in the respective minutes. The parties and witnesses must sign the minutes and may read them beforehand or request that they be read to them by the official designated by the authority resolving the case.

C) Documentary Evidence

Documentary evidence is any evidence containing written, visual, or audio information, regardless of the material, format, or device in which it is recorded or consigned. The authority resolving the case may request the parties to provide the necessary technological tools for the assessment of the documents offered when these are not available. If the parties do not have such tools, the authority may request the assistance of the Federal Public Prosecutor’s Office, local prosecutor’s offices, federal entities, or public higher education institutions to grant them access to the necessary technological tools for the assessment of documentary evidence.

Regarding the division of documentary evidence, public documents are those issued by public servants in the exercise of their duties. Private documents are those that do not meet the above condition. On the other hand, documents in a foreign language or in any language or dialect must be translated into Castilian Spanish. For this purpose, the authority resolving the matter will request a translation by an expert appointed by the authority.

Otherwise, private documents must be submitted in the original, and when they are part of a file or case file, they must be exhibited for verification of the portion indicated by the interested parties.

Finally, the substantiating or resolving authority may request the collaboration of the federal public prosecutor’s office or the federal entities to determine the authenticity of any document questioned by the parties.

D) Expert Evidence

Expert evidence will be used when special knowledge of a science, art, technique, trade, industry, or profession is necessary to determine the truth of the facts.

Those proposed as experts must hold a degree in the science, art, technique, trade, industry, or profession relevant to the matter on which they are to render an opinion, provided that the law requires such a degree for their practice. Otherwise, those who, in the resolving authority’s judgment, have the knowledge and experience to issue an opinion on the matter may be authorized to act as experts.

For the purposes of offering and processing expert evidence in the administrative liability of public servants, the following rules must be followed:

I.- The parties shall offer their experts, expressly indicating the science, art, technique, trade, industry, or profession on which the evidence is to be presented, as well as the points and issues on which the evidence will be addressed.

II.- In the agreement resolving the admission of evidence, the offeror shall be required to present their expert on the day and time set by the resolving authority, so that they may accept and protest their duties. Failure to do so shall result in the evidence not being offered.

III.- Upon admitting expert evidence, the resolving authority will give the other parties a three-day hearing to propose additional points and issues for the expert to determine.

IV.- If the expert has accepted and protested his or her position, the resolving authority will prudently set a deadline for the expert to submit the corresponding opinion. If this opinion is not submitted, the evidence will be declared void.

V.- The other parties to the administrative procedure may, in turn, appoint an expert to rule on the aspects questioned by the person offering the evidence, as well as on those expanded upon by the other parties.

VI.- Once the experts have submitted their opinions, the resolving authority will convene them for a hearing where the parties and the authority itself may request any clarifications and explanations they deem appropriate.

VII.- It should be noted that the parties will be responsible for the fees of any expert witnesses they offer.

VIII.- If deemed appropriate, the resolving authority may request the collaboration of the federal public prosecutor’s office or the federal entities or public higher education institutions so that, through experts in science, art, technology, industry, trade, or profession attached to such institutions, they may issue their opinion on those issues or points disputed by the parties in the presentation of expert evidence, or on those aspects deemed necessary to clarify the facts.

E) Inspection

The inspection in the administrative liability procedure shall be the responsibility of the resolving authority and shall proceed when requested by any of the parties, or when the resolving authority deems it appropriate to clarify the facts, provided that no special knowledge is required to assess the objects, things, places, or events intended to be observed through the inspection.

When offering the inspection evidence, the offeror must specify the objects, things, places, or events intended to be observed through the intervention of the resolving authority. However, before admitting the inspection evidence, the resolving authority shall give the other parties notice so that they may state what is appropriate for their rights and, where appropriate, propose expanding the scope of the objects, things, places, or events that will be the subject of the inspection.

To conduct the inspection, the resolving authority will summon the parties to the location where the inspection will be conducted. They may attend to make any observations they deem appropriate. Finally, a report will be drawn up regarding the inspection, which must be signed by those involved. If they are unwilling or unable to do so, the resolving authority will sign the respective report, noting this circumstance.

4) Reports of Alleged Administrative Liability

The report of alleged administrative liability is the instrument in which the investigating authorities describe the facts related to any of the offenses outlined in the General Law on Administrative Responsibilities, setting forth, in a documented form with evidence and grounds, the reasons and alleged responsibility of the public servant or a private individual in the commission of administrative offenses, and must contain the following:

I.- The name of the investigating authority.

II.- The address of the investigating authority for hearing and receiving notifications.

III.- The name(s) of the officials who may be subject to administrative liability proceedings by the investigating authority, specifying the scope of the authorization granted.

IV.- The name and address of the public servant identified as the alleged responsible party, as well as the public entity to which they are assigned and the position they hold there. If the alleged responsible parties are individuals, their name or company name must be stated, as well as the address where they may be served.

V.- A logical and chronological account of the events that led to the alleged administrative offense.

VI.- The offense charged to the person identified as the alleged responsible party, clearly stating the reasons why they are considered to have committed the offense.

VII.- The evidence to be offered in the administrative liability procedure to prove the commission of the administrative offense and the responsibility attributed to the person identified as the alleged perpetrator. Documentary evidence in the party’s possession must be presented, or, if not, evidence that is duly stamped with the corresponding acknowledgment of receipt must be provided, proving that the evidence was requested in due time.

VIII.- The request for precautionary measures, if applicable.

IX.- The handwritten signature of the investigating authority.

5) Inadmissibility

Inadmissibility in law is an obstacle or lack of technical opportunity that prevents the merits of a case from being examined, which, in the subject matter at hand, would be determining whether or not a serious or non-serious offense existed. The following are the grounds for inadmissibility contemplated in the General Law on Administrative Responsibilities:

I.- When the administrative offense has expired.

II.- When the facts or conduct at the subject of the procedure were not within the jurisdiction of the authorities investigating or resolving the matter. In this case, the matter must be brought to the attention of the authority deemed competent by means of a letter.

III.- When the administrative offenses attributed to the alleged responsible party have already been the subject of a final resolution issued by the authorities resolving the matter, provided that the person identified as the alleged responsible party is the same in both cases.

IV.- When the facts referred to in the report of alleged administrative liability do not reveal the commission of administrative offenses.

V.- When the report of alleged administrative liability fails to include any information.

6) Hearings and Procedural Formalities

Hearings held in the administrative liability procedure shall be conducted by the following rules:

I.- They shall be public.

II.- No interruption of the hearing by any person, whether by those participating in it or by persons unrelated to it, shall be permitted. For the purposes of the foregoing, the authority in charge of conducting the hearing may suppress interruptions by using coercive means and shall even be empowered to order the removal of persons unrelated to the procedure from the premises where the hearing is being held, when, in its judgment, it is appropriate for the normal development and continuation of the hearing. For this purpose, it may request the assistance of law enforcement and must record the reasons for doing so in the respective minutes.

III.- Those acting as secretaries, under the responsibility of the authority in charge of conducting the hearing, must record the day, place, and time the hearing begins and ends, as well as the names of the parties, experts, witnesses, and individuals who participated in the hearing, recording any incidents that occurred during the hearing.

7) Processing of Administrative Liability

A) Minor Offenses

In matters related to minor administrative offenses and, therefore, that must be processed and resolved before the civil service secretariats or internal oversight bodies, the following procedure must be followed:

I.- The investigating authority must submit the report of alleged administrative liability to the substantiating authority, which will rule on its admission within the following three days. The authority may request that the investigating authority correct any omissions it notes or clarify the facts described in the report.

II.- If the investigating authority accepts the report of alleged administrative liability, it will order the alleged responsible party to be summoned and must cite him or her to appear in person at the initial hearing, specifying the date, place, and time of the hearing, as well as the authority before whom it will be held.

III.- Between the date of the summons and the initial hearing, there must be a period of no less than 10 and no more than 15 business days. The hearing may only be postponed for duly justified reasons of unforeseen circumstances or force majeure, or in those cases where it is designated.

IV.– Prior to the initial hearing, the investigating authority must summon the other parties who must attend the proceedings at least 72 hours in advance.

V.- On the day and time set for the initial hearing, the alleged perpetrator will make their statement in writing or verbally and must offer the evidence they deem necessary for their defense. In the case of documentary evidence, they must present all the evidence they have in their possession, or if they do not have it, proof of their request for it must be obtained through the corresponding acknowledgment of receipt. In the case of documents held by third parties that could not be obtained because they are in private archives, they must indicate the archive where they are located or the person in their care so that, where appropriate, they may be requested under the terms provided in the General Law on Administrative Liabilities.

VI.- Third parties summoned to the administrative liability procedure, no later than during the initial hearing, may state in writing or verbally what is appropriate for their rights and offer the evidence they deem relevant. They must present the documentary evidence they have in their possession, or if they do not have it, proof of their request for it must be obtained through the corresponding acknowledgment of receipt.

VII.- Once the parties have stated their opinions during the initial hearing and offered their respective evidence, the hearing authority will declare the initial hearing closed. After that, the parties may not offer any further evidence except for that which is supervening.

VIII.-  Within 15 business days following the close of the initial hearing, the hearing authority must issue the corresponding evidence admission agreement, ordering the necessary steps for its preparation and presentation.

IX.- Once the presentation of the evidence offered by the parties has concluded, and if there are no pending proceedings to be provided or additional evidence to be presented, the hearing authority will declare the period for arguments open for a period of 5 business days for the parties.

X.- Finally, once the argument period has elapsed, the authority resolving the matter will, ex officio, declare the investigation closed and summon the parties to hear the corresponding resolution, which must be issued within a period of no more than 30 business days, which may be extended once for another 30 business days when the complexity of the matter so requires, and the reasons for doing so must be stated.

B) Serious Administrative Offenses

In matters related to serious administrative offenses whose adjudicative authority is the Federal Court of Administrative Justice at the federal level, and the State Court of Administrative Justice of the state of Chihuahua at the local level, the following procedure must be observed:

I.- No later than three business days after the conclusion of the initial hearing, the adjudicating authority must, under its own responsibility, send the original records of the case to the competent court and notify the parties of the date of dispatch, indicating the address of the court responsible for resolving the matter.

II.- When the court receives the case file, it must, under its strictest responsibility, verify that the offense described in the report of alleged administrative responsibility is considered serious. If it is not, it will duly justify and justify its decision and send the respective file to the corresponding adjudicating authority so that the proceedings may continue as a non-serious administrative offense.

Likewise, if the court finds that the facts described by the investigating authority in the report of alleged administrative liability correspond to the description of a different serious offense, it will order the investigating authority to make the appropriate reclassification, and may provide any guidelines it deems pertinent for its proper presentation, for which it will grant a period of three business days. If the investigating authority refuses to reclassify the report, it will inform the court under its strictest responsibility, providing the reasons and justifications for its actions. In this case, the court will continue with the administrative liability procedure.

III.- When the record indicates that the parties have been notified, it will issue, within the following 15 business days, the corresponding agreement on the admission of evidence, ordering the necessary steps for its preparation and presentation.

IV.- Once the parties have presented the evidence, and if there are no pending proceedings to be presented or no further evidence to be presented, the court will declare the argument period open for a period of 5 business days, common to the parties.

V.- Once the argument period has elapsed, the court will ex officio declare the investigation closed and summon the parties to hear the corresponding ruling, which must be issued within a period of no more than 30 business days. This period may be extended once for another 30 business days when the complexity of the matter so requires, and the reasons for doing so must be stated.

8) Legal Remedies

Regarding the administrative liability of public servants, the General Law on Administrative Liability provides for the following legal remedies:

A) Revocation Relief

Public servants found responsible for committing non-serious administrative offenses under the terms of administrative resolutions issued by the civil service secretariats or internal oversight bodies may file a revocation relief before the authority that issued the resolution within 15 business days following the date on which the respective notification takes effect.

In any case, the resolutions issued in the revocation relief may appealed before the administrative courts via contentious-administrative proceedings. However, this revocation relief be filed, as there is no basis in the law to consider the revocation relief as optional. See the following binding precedent: REVOCATION RELIEF PROVIDED FOR IN ARTICLE 210 OF THE GENERAL LAW ON ADMINISTRATIVE LIABILITIES. MUST BE FILED PRIOR TO INITIATING THE ADMINISTRATIVE LITIGATION TRIAL, AGAINST THE RESOLUTION THAT DETERMINES THE COMMISSION OF A NON-SERIOUS ADMINISTRATIVE OFFENSE[5].

Regarding its processing, the revocation relief shall be subject to the following rules:

I.- It shall be initiated in writing, in which the public servant must state the issues that, in his or her opinion, the decision causes, as well as offer any evidence he or she deems necessary.

II.- The authority shall decide on the dismissal, admission, or dismissal within three business days; if admitted, it shall decide on the evidence offered, rejecting outright any evidence that is not suitable to refute the facts on which the decision is based.

III.- If the written notice of the revocation relief does not meet any of the requirements indicated and the authority does not have the necessary evidence to correct them, the appellant will be warned, on one occasion only, to correct the omissions within a period not to exceed three days from the day following notification of the warning. Failure to do so will result in the dismissal of the revocation relief.

IV.- Once the evidence, if any, has been presented, the civil service secretariats, the head of the internal oversight body, or the public servant to whom they delegate this authority, will issue a resolution within the following 30 business days.

B) Claim Relief

The the claim relief will be admissible against the resolutions of the investigating or resolving authorities that admit, reject, or deem the report of alleged administrative liability, the response, or any evidence not submitted; those that decree or deny the dismissal of the administrative liability proceeding before the close of the investigation; and those that admit or reject the intervention of the interested third party.

In this regard, the claim relief will be filed with the investigating or resolving authority, as appropriate, that issued the appealed ruling, within 5 business days following the date on which the notification in question takes effect. Once the claim relief is filed, the opposing party will be ordered to be notified within 3 business days to express their opinions. Without further action, the court will be notified for a ruling within 5 business days.

Finally, the claim relief will be heard by the substantiating or resolving authority that issued the appealed ruling, and the resolution of the claim will not allow any legal relief.

C) Appeal

An appeal will be filed in writing before the court that issued the ruling within 15 business days following the date on which notification of the appealed ruling takes effect.

The appeal must state the issues caused by the ruling and will only be admissible in the following cases:

I.- A ruling that determines the imposition of sanctions for the commission of serious administrative offenses or offenses committed by private individuals.

II.- A ruling that determines that there is no administrative liability on the part of the alleged offenders, whether public servants or private individuals.

Regarding the substantiation of the ruling, the court will proceed to examine the grounds for appeal based on their logical precedence. In all cases, the consideration of the issues on the merits will be prioritized over those of procedure and form, unless reversing the order would establish the innocence of the public servant or the private individual, or both; or if the appellant is the investigating authority, procedural violations have prevented the definitive determination of the responsibility of those involved.

Finally, if the judgment is overturned or its modification so provides, when the appellant is a public servant or a private individual, the public entity for which the appellant provides or has provided services will be ordered to immediately reinstate the appellant to the rights of which the appellant would have been deprived by the execution of the contested sanctions, in accordance with the terms of the respective judgment. However, public prosecutors, official experts, and members of law enforcement institutions; In these cases, the Attorney General’s Office, the prosecutor’s offices and the attorney general’s offices of the federal entities, and the federal, state, or municipal police institutions will only be obligated to pay compensation and other benefits to which they are entitled, and reinstatement to service will not be permitted under any circumstances.

It should be noted that this appeal is applicable even when the sanction imposed on the public servant or individual is not specified, as can be seen from the following precedent: ADMINISTRATIVE LIABILITIES. AN APPEAL IS ALLOWED AGAINST THE JUDGMENT OF THE SPECIALIZED AND/OR AUXILIARY CHAMBER OF THE FEDERAL COURT OF ADMINISTRATIVE JUSTICE (TFJA), WHICH ACCREDITS THE SERIOUS OFFENSE ATTRIBUTED TO THE PUBLIC SERVANT, BUT FAILS TO IMPOSE A PENALTY, IN TERMS OF ARTICLE 101 OF THE RELATIVE GENERAL LAW[6].

D) Review Relief

Finally, the General Law on Administrative Liabilities provides for a special legal remedy that is not resolved by the administrative courts, but rather by the circuit collegiate courts affiliated with the Federal Judicial Branch. This legal remedy, known as the review relief and based on Article 104 of the Constitution[7], is informally known as the «direct amparo of the authorities» both because the person who resolves it also resolves the direct amparo of private individuals, and because of the rules for its processing and review, which are similar.

However, it should be noted that final resolutions on administrative liabilities matters issued by the Federal Court of Administrative Justice may be challenged only by the Secretariat of Public Administration, the internal oversight bodies of federal public entities, or the Superior Audit Office of the Federation, by filing the review relief in writing before the court itself within 10 business days following the date on which the respective notification takes effect.

As I have already stated, this legal remedy is resolved by a specialized circuit collegiate court in the administrative area and belonging to the Federal Judicial Branch, which is the final instance (for the authorities) Therefore, since it’s final, other ordinary legal remedies must be attempted, such as an appeal, since failure to do so would render the review inadmissible due to a violation of the principle of finality. See, for example: REVIEW RELIEF PROVIDED FOR IN ARTICLE 220 OF THE GENERAL LAW ON ADMINISTRATIVE RESPONSIBILITIES. AS A GENERAL RULE, IT IS INADMISSIBLE IF, PRIOR TO ITS FILING, THE VARIETY OF APPEALS REGULATED IN ARTICLES 215 TO 219 OF THE CITED ORDER[8]. See also: ADMINISTRATIVE LIABILITIES. JUDGMENTS ISSUED BY THE ORDINARY CHAMBER OF THE FEDERAL COURT OF ADMINISTRATIVE JUSTICE IN MATTERS OF LIABILITIES RULED IN THE RESPECTIVE PROCEEDINGS FOR SERIOUS MISCONDUCT ARE NOT FINAL[9].

Finally, this review relief contemplated in the General Law on Administrative Liabilities should not be confused with the tax review relief, which is based on the Federal Law of Administrative Procedure. Although it is also a type of «protection from the authorities» resolved by a circuit collegiate court, the legal remedy is not identical. For such purposes, see the following binding precedent: TAX REVIEW RELIEF. IT IS INADMISSIBLE AGAINST THE JUDGMENTS ISSUED IN PROCEEDINGS CONDUCTED IN ACCORDANCE WITH THE GENERAL LAW OF ADMINISTRATIVE LIABILITIES[10].

E) Reconsideration Relief

As a special note, and in accordance with the legislation of the state of Chihuahua, the Organic Law of the State Court of Administrative Justice and the Law of Administrative Justice of the State of Chihuahua provide for an additional legal remedy that authorities may file against resolutions regarding administrative liability: the appeal’s judgment. However, this legal remedy, rather than being resolved by a separate jurisdictional body, such as the review relief by a circuit collegiate court, is resolved by the Plenary Session of the State Court of Administrative Justice. This is because there is no constitutional basis for creating a special review or appeal at the local level to be resolved by the Federal Judicial Branch.

Thus, in Chihuahua, both the appeal (which may be filed by private complainants, individuals linked to serious administrative offenses, and public servants) and the reconsideration relief are resolved by the Plenary Session of the State Court of Administrative Justice; the latter being a remedy exclusively for the authorities, as will now be seen. However, it should be clarified that both appeal and complaint resolutions allow individuals to seek direct amparo, which is not, strictly speaking, a remedy, but rather a constitutional trial.

That said, with regard to appeals, final resolutions issued by the Plenary Session of the State Administrative Justice Tribunal (those arising from appeals, for example) may be challenged by the Secretariat responsible for internal control of the Executive Branch of Chihuahua (the Secretariat of Public Service), internal oversight bodies of public entities, and the State Audit Office by filing a motion for reconsideration, in a written document to be submitted to the court within 5 business days following the date on which the respective notification takes effect.

Once the reconsideration relief has been filed and the opposing party has been notified, the Plenary Session must issue a final decision within 10 business days and may revoke, modify, or confirm the appealed resolution.

By Omar Gómez

Mexican Tax, Administrative, and Constitutional Attorney

Partner at belegalabogados.mx

Contact me at hola@ogomezabogado.com

[1] Thesis: P./J. 99/2006. Plenary Session of the Mexican Supreme Court of Justice. Ninth Judicial Epoch. Binding Precedent. Digital Registration: 174488.

[2] Thesis: P./J. 100/2006. Plenary Session of the Mexican Supreme Court of Justice. Ninth Judicial Epoch. Binding Precedent. Digital Registration: 174326.

[3] Thesis: P./J. 43/2014 (10a.) Plenary Session of the Mexican Supreme Court of Justice. Tenth Judicial Epoch. Binding Precedent. Digital Registration: 2006590.

[4] Thesis: 2a./J. 115/2024 (11a.) Second Chamber of the Mexican Supreme Court of Justice. Eleventh Judicial Epoch. Binding Precedent. Digital Registration: 2029580.

[5] Thesis: 2a./J. 73/2023 (11a.) Second Chamber of the Mexican Supreme Court of Justice. Eleventh Judicial Epoch. Binding Precedent. Digital Registrarion: 2027830.

[6] Thesis: PR.A.CN. J/13 A (11a.) REGIONAL PLENARY ON ADMINISTRATIVE MATTERS OF THE CENTRAL-NORTHERN REGION, WITH RESIDENCE IN MEXICO CITY. Eleventh Judicial Epoch. Binding Precedent. Digital Registration: 2027037.

[7] Article 104.- The Federal Courts shall judge: […]

III.- Review relief filed against the final rulings of the administrative courts referred to in Section XXIX-H of Article 73 of this Constitution, only in the cases specified by law. The reviews, which the Circuit Collegiate Courts shall decide, shall be subject to the procedures established by the regulatory law of Articles 103 and 107 of this Constitution for review in indirect amparo, and no trial or appeal shall be admissible against the rulings issued by the Circuit Collegiate Courts. […]

[8] Thesis: PC.I.A. J/28 A (11a.) PLENARY COURT ON ADMINISTRATIVE MATTERS OF THE FIRST CIRCUIT. Eleventh Judicial Epoch. Binding Precedent. Digital Registration: 2025775.

[9]Thesis: PLENARY COURT ON ADMINISTRATIVE MATTERS OF THE FIRST CIRCUIT. Eleventh Judicial Epoch. Binding Precedent. Digital Registration: 2025778.

[10] Thesis:  I.8o.A. J/1 A (11a.) EIGHTH COLLEGIATE COURT IN ADMINISTRATIVE MATTERS OF THE FIRST CIRCUIT. Eleventh Judicial Epoch. Binding Precedent. Digital Registration: 2029180.

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