The Administrative Trials Become Effective to Resolve the Anti-corruption Matters
As you are aware, the Mexican Government has created through various legal regulations the new National Anti-corruption System as a structure that will coordinate all the Federal Authorities in the prevention, detection, sanction and supervision of administrative responsibilities and corruption acts by authorities or individuals/companies.
The Federal Court of Administrative Justice (FCAJ) have extended its jurisdiction to attend and resolve trials that are related with the imposition of sanctions because administrative responsibilities deemed as serious faults of public officers; as well as any kind of administrative responsibility in the case of individuals/companies.
New Trial for Administrative Responsibility of Public Officers and Individuals/Companies
In accordance with the provisions of the General Law on Administrative Responsibilities (GLAR), the administrative responsibilities procedures against public officers and individuals/companies, will be initiated by the Internal Comptroller Section of the governmental entity (CS), the Ministry of Public Service (MPS) and/or the Federal Audit Department (FAD) on its own motion or upon request, who will qualify whether or not the faults are serious in the case of public officers; or faults committed by individuals/companies, according to the following procedure:
- Any individual/company or public officer that have knowledge of an administrative responsibility matter may initiate personal or anonymous a complaint before the CS, MPS or FAD; or could be initiated by operation of Law by these governmental entities.
- The authority where the complaint is initiated ("investigator authority"), must send to a specialized section in administrative responsibility matters within the same governmental entity ("ruler authority") the report of alleged administrative responsibility.
- The rule authority will decide on the admission of the aforementioned report, and then summon the suspected responsible to an initial hearing, where his statement must be presented in writing or orally and must submit evidence for his defense.
- After the hearing, the rule authority shall qualify whether or not we are facing a serious public officer's fault, or if a fault exists in the case of individuals/companies.
- Should the administrative misconduct of public officials is deemed not serious, the matter will be analyzed and resolved by the rule authority within the following thirty business days, after the procedure is closed.
In case that through the resolution the public officer is sanctioned, such officer may file an administrative appeal before the Legal Section within the same governmental entity, and against the appeal's decision it is possible to file an administrative litigation before the FCAJ.
- If the administrative fault is considered as serious or refers to an individual/company, the procedure of administrative responsibility will be sent to the Specialized Chambers of the FCAJ, where the parties would have the opportunity to submit pleadings. After that, the FCAJ must issue a resolution within the following thirty business days.
In case it is determined the existence of an administrative responsibility and a sanction is imposed, public officers and individuals/companies may submit an appeal before the third section of the Superior Chamber of the FCAJ.
It is important to mention that the statute period of limitation for no serious misconduct is three years; while the statute period of limitation for serious public officer's misconduct and all the faults of individuals/companies are seven years.
Creation of new Temporary Chambers
On July 19th, 2017, it came into force the GLAR, situation that force the FCAJ to create five Specialized Chambers on administrative responsibilities matters distributed as follows: (i) two in Mexico City, (ii) one in the city of Puebla, (iii) one in the city of Guadalajara, and (iv) one in the city of Torreon. Also a third section of the Superior Chamber of the FCAJ must be created.
Such Specialized Chambers in administrative responsibilities matters are still pending to be created up to this date, since the process of approving the proposed judges is pending by the Senate.
Therefore, an given the imminent entry into force of the National Anti-corruption System, the FCAJ has temporarily transformed (since July 19th, 2017) the thirteenth Metropolitan Regional Chamber in an Auxiliary Chamber to resolve administrative responsibilities matters, located in Mexico City and with jurisdiction in all the national territory.
Such Chamber will continue having its functions of Metropolitan Regional Chamber and also assume the jurisdiction of Auxiliary Chamber to resolve administrative responsibilities matters, where it could -among other things- resolve the procedures that qualifies as serious public officer's misconduct or individuals/companies; assess to public officers or individuals/companies the payment of compensation and economical sanctions; disqualify individuals/companies to participate in public bids procedures or be appointed as a public officer; as well as to sanction representatives of legal entities, proceeding to the suspension of activities, dissolution or intervention of the corresponding company, provided that the company receives an economical benefit and its participation is proved.
We consider that it is very important that within the National Anti-corruption System exists the possibility to denounce any act of corruption carry on by Federal public officers through a personal or anonymous complaint.
In addition, the creation of a specialized trial that will be resolved by personal specialized in administrative responsibility matters will be very helpful for the battle against the corruption.
We trust that the new Court Chambers will resolve this kind of matters impartially and imposing exemplary sanctions to avoid further corruption acts. We will be awaiting the creation of the third section of the Superior Chamber and the Specialized Chambers.