INTRODUCTION
The formal prison order is a sentence which is passed by the criminal judge taking into consideration, that the preparatory statement has been taken, that the body of the crime, the probable responsibility, are accredited, and that there is nothing that exempts the accused from liability, much less something that can end the procedure, among these is the death of the Amnesty, Abandonment of the accusation, in the infractions of private action, Prescription, Expiration of the term of conditional suspension of the criminal procedure, without revocation., Death of the victim in cases of private action, unless it is continued by his heirs, in accordance with the provisions of the criminal procedure code, Revocation or withdrawal of the private instance, when public action depends on it,Comprehensive compensation for the particular or social damage caused, carried out before the trial, in infringements against property without serious violence against persons, in wrongful infringements and in contraventions, provided that the victim or the public prosecutor admit it, as the case may be, Conciliation, Expiration of the maximum period of duration of the process, Expiration of the maximum period of duration of the preparatory procedure without an accusation or other conclusive requirement having been made, Payment of the maximum foreseen for the penalty of fines in the case of infractions sanctioned only with that kind of penalties.according to the case, Conciliation, Expiration of the maximum term of the process, Expiration of the maximum term of the preparatory procedure without any accusation or other conclusive requirement having been made, Payment of the maximum foreseen for the penalty in the case of sanctioned infractions only with that kind of pain.according to the case, Conciliation, Expiration of the maximum term of the process, Expiration of the maximum term of the preparatory procedure without any accusation or other conclusive requirement having been made, Payment of the maximum foreseen for the penalty in the case of sanctioned infractions only with that kind of pain.
Within this we have that the penalty began to be taken into consideration from remote times in which the lazy and independent men met in society, tired of living in a continuous number of war and enjoying a freedom that will be useless in uncertainty. to keep it. So they sacrificed a part of it to enjoy the rest in sure tranquility. The complex of all these portions of freedom, sacrificed for the good of each one, forms the sovereignty of a nation, and the sovereign is its administrator and legitimate depositary. But it was not enough to form this deposit, it was also necessary to defend it from the private usurpations of each individual man. They all try not only to remove the deposit from their own portion, but to usurp the others.
ELEMENTS THAT INTEGRATE THE FORMAL PRISON CAR IN THE VARIOUS CRIMES.
2.- ORIGIN OF PENALTIES
Laws are the conditions in which lazy and independent men met in society, tired of living in a continual number of war and enjoying a freedom that will be useless to them in the uncertainty of preserving it. For this reason they sacrificed a part of it to enjoy the rest in sure tranquility. The complex of all these portions of freedom, sacrificed for the good of each one, forms the sovereignty of a nation, and the sovereign is its administrator and legitimate depositary. But it was not enough to form this deposit, it was also necessary to defend it from the private usurpations of each individual man. They all try not only to remove the deposit from their own portion, but to usurp the others. To avoid these usurpations, sensible motives were needed that would be enough to contain the despotic spirit of each man,when you want to immerse the laws of society in its almost ancient. These sensitive reasons are the penalties established against violators of those laws. Call them sensible motives, because experience has shown that the crowd does not adopt stable principles of conduct, nor does it move away from that innate general dissolution, which is observed in the physical and moral universe, but with motives that immediately hurt the senses and that they continually present themselves to the understanding, to counterbalance the strong impressions of the partial impetus that opposes the universal good, and eloquence, declamations and the most sublime truths have not been enough to hold for a long time the excited passions with the sensible incentives of the objects present.These sensitive reasons are the penalties established against violators of those laws. Call them sensible motives, because experience has shown that the crowd does not adopt stable principles of conduct, nor does it move away from that innate general dissolution, which is observed in the physical and moral universe, but with motives that immediately hurt the senses and that they continually present themselves to the understanding, to counterbalance the strong impressions of the partial impetus that opposes the universal good, and eloquence, declamations and the most sublime truths have not been enough to hold for a long time the excited passions with the sensible incentives of the objects present.These sensitive reasons are the penalties established against violators of those laws. Call them sensible motives, because experience has shown that the crowd does not adopt stable principles of conduct, nor does it move away from that innate general dissolution, which is observed in the physical and moral universe, but with motives that immediately hurt the senses and that they continually present themselves to the understanding, to counterbalance the strong impressions of the partial impetus that opposes the universal good, and eloquence, declamations and the most sublime truths have not been enough to hold for a long time the excited passions with the sensible incentives of the objects present.because experience has shown that the multitude does not adopt stable principles of conduct, nor does it move away from that innate general dissolution, which is observed in the physical and moral universe, but with motives that immediately injure the senses and that continually appear to understanding, to counterbalance the strong impressions of the partial impetus that oppose the universal good, eloquence, declamations and the most sublime truths have not been enough to hold for a long time the excited passions with the sensible incentives of the present objects.because experience has shown that the multitude does not adopt stable principles of conduct, nor does it move away from that innate general dissolution, which is observed in the physical and moral universe, but with motives that immediately injure the senses and that continually appear to understanding, to counterbalance the strong impressions of the partial impetus that oppose the universal good, eloquence, declamations and the most sublime truths have not been enough to hold for a long time the excited passions with the sensible incentives of the present objects.to counterbalance the strong impressions of the partial impetus that opposes the universal good, eloquence, declamations and the most sublime truths have not been enough to hold for a long time the excited passions with the sensible incentives of the present objects.to counterbalance the strong impressions of the partial impetus that opposes the universal good, eloquence, declamations and the most sublime truths have not been enough to hold for a long time the excited passions with the sensible incentives of the present objects.
3.- FORMAL PRISON OR PREVENTIVE PRISON.
Through the formal prison order, also called preventive detention, confirms homologation or orders a precautionary measure restricting physical freedom. Confirmation, if the court had previously ordered the arrest; homologation, if any person or authority other than that of the court had already imposed it; or orders it, if until then the arrest had not been ordered. The preventive detention order is of the same nature as the preventive detention. Both involve the precautionary measure restricting freedom. Detention is a provisional measure, but more provisional in time than preventive detention, which without external care in language could be called “definitive, but within preventive detention”, which reveals a contradiction, but without any doubt is picturesque and illustrative.Against the order of preventive detention is the one that in Mexico is called the "freedom order", which would be a resolution of release from custody. this order of liberty is often also confused with the decision denying prosecution, which is wrong, since there can be a decision denying prosecution, which is wrong since there can be a resolution for freedom of custody, but that order final processing. For example, in those processes where the crime subject to the process does not have a "corporal" or custodial penalty, and the subject must be prosecuted.this order of liberty is often also confused with the decision denying prosecution, which is wrong, since there can be a decision denying prosecution, which is wrong since there can be a resolution for freedom of custody, but that order final processing. For example, in those processes where the crime subject to the process does not have a "corporal" or custodial penalty, and the subject must be prosecuted.this order of liberty is often also confused with the decision denying prosecution, which is wrong, since there can be a decision denying prosecution, which is wrong since there can be a resolution for freedom of custody, but that order final processing. For example, in those processes where the crime subject to the process does not have a "corporal" or custodial penalty, and the subject must be prosecuted.and the subject if it must be processed.and the subject if it must be processed.
Article 25.- The Prison consists of the deprivation of corporal liberty. Its duration will be from three days to sixty years, and an additional penalty to the maximum limit may only be imposed when a new crime is committed in seclusion. It will be extinguished in the penitentiary colonies, establishments or places that the law or the executing authority of the penalties specify for this purpose, adjusting to the respective judicial resolution. The deprivation of preventive liberty is computed the fulfillment of the sentence imposed as well as those that could be imposed in other cases, even if they had as their object facts prior to entering prison. In this case, the penalties will be served simultaneously.
Article 161.- Within seventy-two hours following the moment in which the accused is at the judge's disposal, the formal prison order will be issued when the following requirements are proven.
I.- that the preparatory declaration of the accused has been taken, in the manner and with the requirements established in the previous chapter, or that it is recorded in the file that he refused to declare.
II.- that the body of the crime that has indicated a custodial penalty has been verified.
III.- that in relation to the previous section the probable responsibility of the accused is demonstrated, and
IV.- that it is not fully verified in favor of the accused, some circumstance exempt from liability, or that it extinguishes the criminal action. The term referred to in the paragraph of this article, may be extended for a single time, up to seventy-two hours, when requested by the accused, by himself or by his defense attorney, when rendering his preparatory statement, or within three hours following, provided that such extension is for the purpose of providing and venting evidence for the judge to resolve his legal situation.
4.- FORMAL PRISON CAR
The formal prison or preventive prison order ends with the pre-instruction period, the instruction period begins. Said order shall indicate the unlawful or unlawful acts by which the process will continue and the type of process, that is, its anthropometric dactyl identification and suspends the citizen's guarantees that are mentioned in the Mexican political constitution.
Within 72 hours after the moment in which the accused is at the disposal of the judge, the order of formal imprisonment shall proceed, if the judge proves the following requirements:
I.- THAT THE PREPARATORY DECLARATION OF THE DEFENDANT HAS BEEN TAKEN, IN THE FORM AND WITH THE REQUIREMENTS ESTABLISHED OR THAT THE RECORD REFUSED TO DECLARE:
The preparatory declaration: It is the most significant procedural act in the course of the process and is intended to enlighten the judge to determine the legal situation that the accused must keep, after the term of seventy-two hours, enabling him to obtain Exact knowledge of the charges that exist against him and this so that he can obtain exact knowledge of the charges that exist against him and that he is in a position to answer them and prepare his defense.
The preparatory declaration is an event of great importance in the entire criminal process, since it consists of the first meeting between the accused and the judge, who must decide his innocence or guilt. Said declaration shall be carried out in a place to which the public has access, without restriction.
Preparatory statement: It consists of the first meeting between the accused and the judge, who must decide his innocence or guilt
Said declaration shall be carried out in a place to which the public has access.
A).- The general data of the accused (their nicknames, the ethnic group, if they speak Spanish, they will be informed of the right they have to defend themselves or by someone they trust.
B).- The accused will be informed of the complaint or complaint, as well as the names of their accusers and witnesses
C).- And you will be asked if it is your will to declare, if you so wish, you will be examined on the reported facts.
D).- If the accused decides not to testify, the judge will respect his will, making a record of it in the file.
E).- You will be informed of all the guarantees granted by the legal framework (constitutional art 20)
Record No. 174497
Location:
Ninth Epoch
Instance: Collegiate Circuit Courts
Source: Federal Judicial Weekly and its Gazette
XXIV, August 2006
Page: 2171
Thesis: I.2o.P.128 P
Isolated Thesis
Subject (s): Criminal
PREPARATORY DECLARATION. THE OMISSION OF YOUR RELEASE ORIGINS THE REPLENISHMENT OF THE PROCEDURE (LEGISLATION OF THE FEDERAL DISTRICT).
The reinstatement of the procedure should be ordered if the responsible Judge issued the formally imprisoned order against the accused without having previously taken his preparatory statement, because it implies two violations, namely: a) the legal security guarantee contained in section III of section A of numeral 20 of the Constitution, since in that procedure, the name of the complainant, the nature and cause of the accusation, should have been made known to the former, as well as the other subjective public rights that the provision stipulates in his favor constitutional appointment, whose purpose was to know well the illegal act attributed to him and under these conditions he was able to answer the charge; therefore, in the event of non-compliance with this obligation, he was denied his right to defend himself; and,b) of the guarantee provided for in the second paragraph of article 19 of the Magna Carta, consisting of requesting the extension of the term for the resolution of their legal situation, the objective of which is precisely that, in exercise of their right of defense, they offer the evidence he deems appropriate in order to obtain his freedom.
SECOND CRIMINAL COURT IN CRIMINAL MATTERS OF THE FIRST CIRCUIT.
Amparo under review 792/2006. May 18, 2006. Unanimity of votes. Speaker: Enrique Escobar Ángeles. Secretary: José Cuitláhuac Salinas Martínez.
Record No. 174339
Location:
Ninth Epoch
Instance: Collegiate Circuit Courts
Source: Federal Judicial Weekly and its Gazette
XXIV, August 2006
Page: 2345
Thesis: I.2o.P.127 P
Isolated Thesis
Subject (s): Criminal
SUSPENSION OF THE CONSTITUTIONAL TERM. IT MUST BE ORDERED IF THE INDICATE IS DISABLED TO SUBMIT PREPARATORY STATEMENT.
Although the Code of Criminal Procedures for the Federal District is true, it does not contain any precept that provides for the suspension of the procedure in the event that there is a material impossibility for the discharge of the preparatory declaration of the accused, such suspensive measure proceeds until it disappears. the cause that originates it so that in due time it is collected with the legal formalities and done the above, the legal situation of the former is resolved, since by dictating the formal prison, without venting such diligence, the essential formalities are violated that govern the pre-instruction procedure, whose infringement affects the defendant's defenses, as well as violates their guarantee of legal security, contained in section III of section A of numeral 20 and those of the second paragraph of article 19,both constitutional.
SECOND CRIMINAL COURT IN CRIMINAL MATTERS OF THE FIRST CIRCUIT.
Amparo under review 792/2006. May 18, 2006. Unanimity in the sense of the resolution, with concurring vote of Judge Irma Rivero Ortiz de Alcántara, and majority in the thesis criteria. Speaker: Enrique Escobar Ángeles. Secretary: José Cuitláhuac Salinas Martínez.
Record No. 183089
Location:
Ninth Epoch
Instance: Collegiate Circuit Courts
Source: Federal Judicial Weekly and its Gazette
XVIII, October 2003
Page: 987
Thesis: III.2o.P.119 P
Isolated Thesis
Subject (s): Criminal
PREPARATORY DECLARATION. THE FACT THAT THE JUDGE DECLARES A FORMAL PRISON ORDER WITHOUT HAVING TAKEN THE INDICATE, CONSTITUTES A VIOLATION OF THE LAWS OF THE PROCEDURE AND THE FEDERAL CONSTITUTION (LEGISLATION OF THE STATE OF JALISCO).
If the Judge of the process, without taking the preparatory declaration of the accused, resolved his legal situation by issuing a formal prison order against him, this constitutes a substantial violation of the procedure, which in turn translates into a constitutional violation, since the content of Articles 20 of the Constitution and 162 of the Code of Criminal Procedures for said entity, it follows that the Judge has the obligation to comply with the formalities established in those precepts; then, if only the presence of the people who intervened in it was stated in the conforming act, as well as the fact that the accused retired because he had another diligence in a different court, the action thus taken does not constitute a preparatory statement, since he did not stated his generals;neither was he told that he was entitled to the benefit of provisional liberty under bond; the facts that gave rise to the complaint were not made known to him; the name of the accuser; the right that he had to declare or not, as well as letting him know that he had the right to offer the evidence that he considered necessary for his defense, in order to comply with the provisions of the legal provisions in question.
SECOND COLLEGE COURT IN CRIMINAL MATTERS OF THE THIRD CIRCUIT.
Direct protection 95/2003. June 27, 2003. Unanimity of votes. Speaker: Martín Ángel Rubio Padilla. Secretary: Michell Covarrubias Martínez.
II.- THAT THE BODY OF THE CRIME THAT HAS BEEN PROVIDED WITH A PRIVATE SANCTION FOR FREEDOM IS PROVEN;
By the body of the crime is understood the set of objective or external elements that constitute the materiality of the fact that the law indicates as a crime, as well as the regulations, in case the typical description requires it.
The body of the crime in question and the probable responsibility will be accredited by any evidentiary means indicated in the law (Art.168 of the federal code of criminal procedures).
To accredit the body of the crime, it will suffice in the federal order according to the previous provision, to comply with the objective and normative elements for its part in the code of criminal procedures for the federal district, it is established that in cases where the law incorporates in the prescription of the conduct intended as a crime a subjective or normative element, as essential constituent elements, its accreditation will be necessary to verify the body of the crime.
We can obtain a classification of how to justify the body of crimes, in accordance with our legislation: directly, indirectly or both verifiable. In the first group are the crimes that require demonstrating the existence of the act suspected in the law about this group, RIVERA SILVA considers that it is sometimes improper to include some crimes of specific intent since, according to what he says, “the moral elements can never be verified in a way direct ”.
In the crimes of the second group, the law establishes previously the elements that must be verified, including homicide, injuries, infanticide, etc.
Finally, there are the crimes of the third group, in principle they must be proven as the crimes of the first group, in addition, the law establishes certain special details that must be verified similar to the crimes of the second group, for example: embezzlement, theft and fraud.
Body of crime: (body of crime is understood as the set of objective or external elements that constitute the materiality of the fact that the law designates as a crime, as well as the regulations, in case the typical description requires it)
The body of the crime will be considered verified when the existence of the elements that make up the description of the conduct or criminal acts is proven, the general rules that for this effect the criminal code itself in each of the jurisdictions will be followed for its verification.. as you can see the body of the crime will be integrated with the total elements contained in the criminal type, whether these are what the doctrine has called objectives, subjective and normative; the body of the crime is the set of objective or external elements that constitute the materiality of the fact that the law indicates as a crime, as well as the regulations, in the event that the typical description requires it, in relation to its execution and its circumstances,which is consistent with article 19 of the political constitution of the united mexican states where the concept of body of crime comes from.
Within the modification of the presidential initiative over and over again, the legislators argue that it is necessary to provide the "bases for a new and effective justice system that definitively contributes to consolidating the rule of law", they also refer to our society given an element of criminality, attributing this mainly to three factors: impunity, corruption and inefficiency, being the cause of the first, the failures in the systems of administration and administration of justice, and as regards corruption, it is attributed to the lack of " culture of legality ”and of financial, honorific and institutional incentives.
Our Senators say that accrediting the elements of the type, that is, both those of its objective part and those of the subjective (descriptive, normative, intent or fault and subjective other than intent), is fine for a sentence but is excessive for an order of apprehension or a formal prison order.
They conclude by sentencing that the constitutional text should not follow any doctrinal trend, since the one adopted has been successful in other nations but not in our country, and instead our country, "must advance in the improvement of our system of criminal prosecution." For all the above, now, our senators have focused the point of attention on replacing the legal figure of the elements of the type with the concept of the crime of crime, adding that, in the case of the arrest warrant, to the degree of conviction required It will be based on the existence of data that accredit the body of the crime, understanding it as the set of objective or external elements that constitute the materiality of the fact provided as the crime by law;and for the formal prison order, accreditation will be required with enough data to prove it, as well as the probable responsibility.
III.- THAT THE PROBABLE LIABILITY OF THE GUILTY IS DEMONSTRATED
What is the probable responsibility ?: it is understood as the reasonable possibility that a certain person has committed a crime and exists when the procedural table is based on elements based on the consideration that an individual is likely to be an active subject in some form of authorship, conception, preparation or execution or induce to compel another to execute them.
The probable responsibility of the accused will be considered proven when, from the existing evidentiary means, his participation in the crime, the intentional and guilty commission thereof is deduced and there is no proven in favor of that cause of lawfulness or some exclusion of guilt.
In addition, the existence of probable liability is required, evidence of this, not full proof of it, since such certainty is the subject of the judgment.
The probable responsibility of the accused will be deemed proven when, using the existing evidentiary means, his participation in the crime is deduced, the intentional or guilty commission of the crime and there is no proven in favor of the accused any cause of lawfulness or some exclusion of guilt.
Article 168 that to the letter says:
The public prosecutor will accredit the body of the crime in question and the probable responsibility of the accused, as a basis for the exercise of criminal action; and the judicial authority, in turn, will examine whether both requirements are accredited in the case.
By body of crime is understood the set of objective or external elements that constitute the materiality of the fact that the law designates as a crime, as well as the normative, in the event that the typical description requires it.
The probable responsibility of the accused will be deemed proven when, from the existing evidentiary means, his participation in the crime, the intentional or guilty commission of the crime is deduced and there is no proven in favor of the accused any cause of lawfulness or some exclusion of guilt.
The body of the crime in question and the probable responsibility will be accredited by any evidentiary means indicated by law.
Responsibility is the legal duty in which the indictable individual is to give an account to society of an executed fact, so that when there are facts or circumstances accessory to the crime that allow to suppose that the person in question has taken part in He, in any of the forms established by criminal law, may speak of his probable responsibility in his commission.
IV.- THAT IT IS NOT FULLY PROVEN IN FAVOR OF THE GUILTY SOME CIRCUMSTANCE EXEMPTING LIABILITY OR EXTINGUISHING THE CRIMINAL ACTION; AND
EXEMPT FROM CRIMINAL LIABILITY:
Circumstances exempt from criminal liability are those that allow the offender not to be punished by the law that the penalty establishes, without prejudice to the fact that the crime is established, the existence of the circumstance exempt from criminal liability, makes the offender not be sanctioned, such are the article 10 of the Penal Code says:
1. The mad or insane, unless he has acted in a lucid interval, and the one who, for whatever reason independent of his will, has totally deprived himself of reason. 2. The minor of sixteen years. 3.
The major of sixteen years and minor of eighteen, unless it is established that he has acted with discernment, this is a procedural process, which is carried out before a juvenile judge, and in it that is requiring medical and psychological antecedents and petitions can determine whether or not the youth has acted with discernment. 4. The one who acts in defense of his person or right, whenever the circumstances of illegitimate aggression, the rational need of the means used to prevent or repel it and the lack of sufficient provocation on the part of the person defending himself concur. 5. He who acts in defense of the person or rights of his spouse, of his legitimate blood relatives in all the straight line and in the collateral up to the fourth degree inclusive, of his legitimate relatives in all the straight line and in the collateral until second grade inclusive, from his parents,their recognized natural or illegitimate children. 6. He who acts in defense of the person or rights of a stranger, provided that the circumstances expressed in the previous number are present and that the defender has not been motivated by revenge, resentment or other illegitimate reason, it will be legally presumed that the circumstances foreseen in this number and in numbers 4 and 5 above, whatever the damage that is committed to the aggressor, with respect to the one that refuses escalation in a house or apartment, an office that is inhabited or in its dependencies or if it is from night, in a commercial or industrial premises and one that prevents or tries to impede the consummation of the crimes contemplated in articles 141, 142, 361, 365 ic.2, 390, 391, 433, and 436 of the Penal Code. 7.Anyone who, in order to avoid a wrong, executes an event that causes damage to the property of others, provided that the following circumstances occur:
to. Reality or imminent danger of the evil to be avoided. b. That is greater than that caused to avoid it. c. That there is no other practicable and less damaging means to prevent it. 8. The one that on the occasion of executing a lawful act, with due diligence, causes an evil by mere accident. 9. He who works violated by an irresistible force or driven by an insurmountable means. 10. He who acts in fulfillment of a duty or in the legitimate exercise of a right, authority, office or position.
11. The one that incurred in some omission being prevented by legitimate or insurmountable cause.
12. Anyone who commits a quasi-crime, except in cases expressly punished by law.
EXTINCTION OF CRIMINAL ACTION.
The criminal action can be extinguished for the following causes:
Death of the accused, Amnesty, Abandonment of the accusation, in the infractions of private action, Prescription, Expiry of the term of conditional suspension of the criminal procedure, without revocation, Death of the victim in cases of private action, unless it is continued by his heirs, in accordance with the provisions of the criminal procedure code, Revocation or withdrawal of the private instance, when the public action depends on it, Comprehensive compensation for the particular or social damage caused, carried out before the trial, in infringements against property without serious violence against persons, in wrongful infringements and in contraventions, as long as the victim or the public prosecutor admit it, as the case may be, Conciliation, Expiration of the maximum duration of the process, Expiry of the maximum period of duration of the preparatory procedure without an accusation or other conclusive requirement having been formulated, Payment of the maximum foreseen for the fine in the case of infractions sanctioned only with that kind of penalties.
V.- THE NAMES AND SIGNATURES OF THE JUDGE THAT ISSUE THE RESOLUTION AND OF THE AUTHORIZING SECRETARY MUST BE INCLUDED.
ORDER OF FORMAL PRISON (ORDINARY PROCEDURE)
In the City of___________, being the____ hours of the _________ day of
Month of__________ of____.
Considering the procedures that make up the preliminary investigation, the specifications in which the criminal action is filed, and the actions carried out within the constitutional term of seventy-two hours (or, the constitutional term extended when requested by the accused in the terms of the second paragraph of article 19 of the Constitution) by this court, proceed to resolve, within the same period, in order to determine the legal situation of the accused________________.
_____________ against whom the Public Ministry brought action
Criminal for the crime of __________________________.
CONSIDERING
I. The body of the crime, the type of which is described in article ________ of the Federal Penal Code, was accredited, in kind, by means of the rules of general verification (or special as the case may be), established by article __________ of the Federal Code of Criminal Procedures (or the articles applicable in cases of special verification), through the following tests:
to)___________________
b) ____________________
c) __________________; and
d) __________________
From the elements of conviction analyzed in this recital, it becomes known that the elements of the body of the crime provided for in article _____________ of the Federal Penal Code were integrated.
II. That the probable responsibility of ___________________ in the commission of the crime of_____________, attributed to him by the Public Ministry, was demonstrated up to this procedural stage with the following evidence:
to)__________________;
b) __________________;
c) __________________; and
d) __________________;
Regarding the qualifying circumstance (or circumstances), to which the Public Ministry refers in its consignment specifications, described in article ________ of the Federal Penal Code, this is updated up to this procedural moment, taking into account that _______________________________ (indicate the reasoning that serves as motivation for such affirmation, supporting it with the suitable tests and indicating its location in the file)
III. That for the accused, for the purposes of punishability, the provisions of article ___ ______ (indicate the articles that qualify them) of the Federal Penal Code would be applicable up to this procedural moment and by virtue of the fact that said legal device contemplates custodial sentence, and having satisfied the requirements of articles 18 and 19 of the Constitution, as well as _____________ of the Federal Code of Criminal Procedures, it is necessary to decree the accused___ ___________ his formal imprisonment for the crime of (specify the crime together with his qualifications)
By virtue of this, the ordinary process is opened, the present case is brought before the parties for a term of ______ days so that they offer the evidence that is in their interests, which will be released within the next fifteen days, also let them know that they have a term of three days from the notification of this order, to file the appeal.
For the foregoing, and based on articles 18 and 19 of the Constitution, _________________ and other applicable articles of the Federal Code of Criminal Procedures, it must be resolved and:
RESOLVES
First:
A formal prison is decreed as probable
Responsible for the illicit of___________.
Second:
Comply with the provisions of the second paragraph of Article 19 of the Constitution, and to this effect issue and send an authorized copy of this resolution
To the citizen Director of the Preventive Prison ______________________ in which the accused is interned.
Third:
In compliance with the provisions of article ___________
From the Federal Code of Criminal Procedures, identify the accused
_____________ By the administrative system adopted and request from the Directorate
General of Prisons and Social Readaptation Centers the report of the
Earnings before ___________________ to preventive detention, likewise, Receive the opinion of the defendant's personality.
Fourth: The ordinary procedure is declared open and, in compliance with the provisions of article ____________ of the Federal Code of Criminal Procedures, the process is ordered to be brought before the parties in order for them to propose, within _____ days from from the next to the notification of this order, the evidence they deem pertinent, which will be released in the ______ days after.
Fifth: Let the parties know the right they have to challenge this order, and that for this purpose they have three days, following notification thereof.
Sixth: In compliance with the provisions of article ____________
constitutional, turn official letter to the Executive Director of the Federal Register of Electors of the Federal Electoral Institute, informing him of this constitutional term order issued, for the legal effects that take place.
Seventh: Make the corresponding annotations in the Book of
Government of the Court and issue the ballots and copies of the law.
Eighth: Be notified and carried out.
This was resolved and signed by the citizen Criminal Judge before the Secretary of
Agreements that authorize the actions. Attest.
___________, __________a ___________de ___________
___________________
FIRM
Register No. 163879
Location:
Ninth Epoch
Instance: Collegiate Circuit Courts
Source: Federal Judicial Weekly and its Gazette
XXXII, September 2010
Page: 1033
Thesis: XIX.1o.PT J / 7
Jurisprudence
Subject (s): Criminal
CONCILIATION HEARING IN THE PREVIOUS INVESTIGATION. THE DISTRICT JUDGE, KNOWING THE AMPARO AGAINST THE ORDER OF APREHENSION, THE ORDER OF FORMAL PRISON OR OF SUBJECT TO PROCESS DICTATED BY CRIMES PERSECUTED BY NECESSARY COMPLAINT AND BY PERSONS OFFICABLE WHEN THE FORGIVENESS OF THE OFFENDED OR THE VICTIM OF EXTINCTION OF THE CRIMINAL ACTION, IT SHOULD BE VERIFIED THAT, PRIOR TO THE RULING OF THE FILING ORDER, THE RESPONSIBLE CRIMINAL JUDGE HAS CERTAINED THAT SUCH DILIGENCE AND EXISTING PRONOUNCEMENT OVER THE VERIFICATION OF THE PROCEEDIBILITY REQUIREMENTS,, SECTION IV, OF THE CODE OF CRIMINAL PROCEDURES FOR THE STATE OF TAMAULIPAS.
From the interpretation of articles 3, section X and 118 of the Code of Criminal Procedures for the State of Tamaulipas, amended and added, respectively, by decree published in the entity's Official Newspaper on July 10, 2003, in relation to jurisprudence 1a./J. 4/2010 of the First Chamber of the Supreme Court of Justice of the Nation, published in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume XXXI, April 2010, page 65, of heading: «CONCILIATION HEARING IN THE PREVIOUS INVESTIGATION. THE OMISSION OF THE PUBLIC MINISTRY TO CALL THE PARTIES TO IT OR CELEBRATE IT, DOES NOT CONSTITUTE AN IRREPARABLY COMPLETED VIOLATION FOR THE EFFECTS OF INDIRECT JUDGMENT OF AMPARO (MEXICO STATE LEGISLATION). ",as well as the initiative signed by the entity's governor and the explanatory memorandum of November 14, 2001, formulated by the members of the Fifty-Seventh State Legislature that culminated in the enactment of that decree, it is noted that the Public Ministry, in the exercise of its persecuting action and in the preliminary investigation stage, it must seek conciliation between the offended or the victim and the accused in the crimes that are prosecuted for necessary complaint, and in those prosecuted ex officio when the pardon of the offended or the victim is cause of extinction of the criminal action; with the understanding that in the event that a conciliation agreement is signed, it will cause the relative investigation to be suspended and the statute of limitations for the criminal action to expire,in terms of article 134 of the Penal Code for the mentioned federal entity. By virtue of this, when the arrest warrant, the order for formal imprisonment or the process, or, in general, any act prior to the sentencing is claimed, the District Judge must corroborate that, prior to the issuance of the filing order, the responsible criminal judge has ascertained that in the ministerial inquiry, the conciliation procedure was carried out and there is a ruling on the verification of the procedural requirements at that initial procedural moment, in accordance with article 170, section IV, of the Code of Criminal Procedures for the State of Tamaulipas.the order of formal imprisonment or of subjection to process or, in general, any act prior to the passing of the sentence, the District Judge must corroborate that, prior to the issuance of the filing, the responsible criminal judge has ascertained that in the ministerial inquiry was carried out the conciliation procedure and there is a ruling on the verification of the procedural requirements at that initial procedural moment, in accordance with article 170, section IV, of the Code of Criminal Procedures for the State of Tamaulipas.the order of formal imprisonment or of subjection to process or, in general, any act prior to the passing of the sentence, the District Judge must corroborate that, prior to the issuance of the filing, the responsible criminal judge has ascertained that in the ministerial inquiry was carried out the conciliation procedure and there is a ruling on the verification of the procedural requirements at that initial procedural moment, in accordance with article 170, section IV, of the Code of Criminal Procedures for the State of Tamaulipas.the responsible criminal judge has ascertained that in the ministerial investigation the conciliation procedure was carried out and there is a ruling on the verification of the procedural requirements at that initial procedural moment, in accordance with article 170, section IV, of the Code of Criminal Procedures for the State of Tamaulipas.the responsible criminal judge has ascertained that in the ministerial investigation the conciliation procedure was carried out and there is a ruling on the verification of the procedural requirements at that initial procedural moment, in accordance with article 170, section IV, of the Code of Criminal Procedures for the State of Tamaulipas.
FIRST COLLEGE COURT IN CRIMINAL AND WORK MATTERS OF THE NINETEENTH CIRCUIT.
Amparo under review 212/2009. May 6, 2010. Unanimity of votes. Speaker: María Lucila Mejía Acevedo. Secretary: María Guadalupe Chávez Montiel.
Amparo under review 235/2009. **********. May 6, 2010. Unanimity of votes. Speaker: María Lucila Mejía Acevedo. Secretary: Hortencia Jiménez López.
Amparo under review 9/2010. May 6, 2010. Unanimity of votes. Speaker: María Lucila Mejía Acevedo. Secretary: María Guadalupe Chávez Montiel.
Amparo under review 226/2009. May 20, 2010. Unanimity of votes. Speaker: Carlos Alberto Escobedo Yáñez, secretary of the court authorized to carry out the functions of Magistrate, in terms of article 81, section XXII, of the Organic Law of the Federal Judicial Branch, in relation to article 52, section V, of the Agreement General of the Plenary of the Council of the Federal Judiciary, which regulates the organization and operation of the council itself. Secretary: Hernando Cardona Acosta.
Amparo under review 206/2009. May 27, 2010. Unanimity of votes. Speaker: María Lucila Mejía Acevedo. Secretary: Hortencia Jiménez López.
Register No. 164950
Location:
Ninth Epoch
Instance: Collegiate Circuit Courts
Source: Federal Judicial Weekly and its Gazette
XXXI, March 2010
Page: 3035
Thesis: II.1o.P.150 P
Isolated Thesis
Subject (s): Criminal
EVIDENCE COLLECTED IN PREVIOUS INVESTIGATION AND PREINSTRUCTION. THE DECISION OF THE COURT OF ALZADA TO GIVE THEM LEGAL EFFECTIVENESS TO CREDIT THE FULL RESPONSIBILITY OF THE DEFENDANT BY RESOLVING THE APPEAL REMEDY PROMOTED AGAINST THE FINAL JUDGMENT, THROUGH THE PRESENT OF A SPECIAL DISMISSAL OF A SPECIAL DISMISSAL, DUE TO A MISCELLANEOUS. PRISON, VIOLATES THE GUARANTEES OF LEGALITY AND LEGAL SECURITY IN DAMAGE OF THE PRISONER PROVIDED FOR IN ARTICLES 14 AND 16 OF THE FEDERAL CONSTITUTION, THIS LAST IN ITS TEXT PRIOR TO THE REFORM PUBLISHED IN THE OFFICIAL JOURNAL OF JUNE 18, 2008
If certain evidence collected during the preliminary investigation and the pre-instruction stage were declared void of conviction by a court of appeal, at the time of resolving the appeal that the defendant filed against the formal prison order, and during the procedural sequel no Some event occurred that varied the aspect that motivated the dismissal of those tests, for example, that various means of conviction that strengthened the content of those tests had been validly vented; and notwithstanding this, a diverse Collegiate Criminal Chamber, when resolving the appeal filed by the plaintiff against the condemnatory sentence issued against him, ignores that first assessment, contradicts it and incorporates those tests again,granting them legal efficacy to accredit the full responsibility of the inmate in the unjust that he is accused of, it is inconclusive that such decision violates the guarantees of legality and legal security to the detriment of the inmate provided for in Articles 14 and 16 of the Political Constitution of the United States Mexicans (the latter in its text prior to the reform published in the Official Gazette of the Federation on June 18, 2008), as it leaves him in a state of defenselessness, because the accused, due to the sense of the original resolution of the appeal, which is res judicata and head of the process initiated against him, did not direct his defense to offer evidence that contradicted those who had already been declared lacking evidentiary value;and while it is true that an appeal body is not obliged to share or follow the legal criteria of another of equal hierarchy, it is also true that, when considering evidence initially rejected, this implies that the new assessment aggravates, without justification, the legal situation of the sentenced person.
FIRST COLLEGE COURT IN CRIMINAL MATTERS OF THE SECOND CIRCUIT.
Direct protection 230/2009. October 28, 2009. Unanimity of votes. Speaker: Mauricio Torres Martínez. Secretary: Horacio Vite Torres.
LEGAL FRAMEWORK
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PRE-INSTRUCTION = the actions are carried out to determine the facts that are the subject of the process, their classification according to the applicable criminal type and the probable responsibility of the accused, or in his case, his freedom for lack of elements to process. |
72 HOURS |
Once the MP has assigned the matter to the judicial authority, the first act it performs is: Auto or settlement resolution ( auto start, inoculation or auto process head) JUDICIAL SELF-EXCITATION = HETEROEXCITATION = |
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With detained - The judge who receives the detainee's deposit must immediately ratify the arrest or decree freedom with the reservations of law If you ratify the detention, the term of 48 hours begins to present your preparatory statement and 72 hours for the judge to determine your situation. Without detainee The judge will file the matter within two days, open a file, and practice the proceedings The judge shall order or deny the apprehension, re-apprehension, appearance or search requested by the MP within 10 days from the date on which the filing was agreed. If the judge denies apprehension, re-apprehension, appearance or search, considering that the corresponding legal requirements are not met, the file will be returned to the MP for the corresponding procedure. |
The pre-instruction period is part of the criminal process, among the main actions that make up this period: 1. The filing order 2. The order of appearance or arrest 3. The preparatory statement 4. Probation delay 5. The resolution of constitutional term to. Formal prison, b. subject to process or c. freedom car |
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Constitutional requirements to give away THE ORDER OF APPREHENSION a) that the procedural requirements have been met (filing of complaint, complaint, etc.) b) that the corresponding complaint or complaint narrates events that the law classifies as crimes and that have at least one custodial sentence indicated c) that sufficient evidence and the necessary information have been presented to verify the body of the crime and the probable responsibility of the accused. EXECUTION OF THE ORDER OF SEIZURE When all the necessary requirements have been met for the court to issue the arrest, re-apprehension or appearance order, it must be made known immediately to the MP so that it orders the judicial police to execute it. |
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PREPARATORY DECLARATION. It consists of the first meeting between the accused and the judge, who must decide his innocence or guilt Said declaration shall be carried out in a place to which the public has access. 1. The general data of the accused (his nicknames, the ethnic group, if he speaks Spanish, he will be informed of the right he has to defend himself or by someone he trusts. 2. The accused will be informed of the complaint or complaint, as well as the names of their accusers and witnesses 3. And you will be asked if it is your will to declare, if you so wish, you will be examined on the reported facts. 4. If the accused decides not to testify, the judge will respect his will, recording this in the file. 5. You will be informed of all the guarantees granted by the legal framework (constitutional art 20) |
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FORMAL PROCESSING CARS The judge dictates the order of formal prison or of subjection to process is that the body of the crime has been verified and the probable responsibility of the accused has been demonstrated Elements of the formal processing orders. a) Verification of the body of the crime ( By body of the crime is understood the set of objective or external elements that constitute the materiality of the fact that the law indicates as a crime, as well as the regulations, in case the typical description requires it) b) Accreditation of probable liability (the probable liability of the accused will be deemed proven when, using the existing evidentiary means, their participation in the crime, the intentional or guilty commission thereof is deduced and there is no proven in favor of the indicated cause of lawfulness or some exclusive. |
RESOLUTIONS ON THE LEGAL STATUS OF THE IMPUTED WITHIN THE CONSTITUTIONAL TERM OF 74 HOURS The court has the obligation to determine the legal situation of the accused within 72 hours. 1. ORDER OF FREEDOM FOR LACK OF ELEMENTS TO PROCESS. At the end of the 72 hours, the necessary elements are not available to continue the process - the non-existence of the crime is not definitively resolved. - The criminal judge must indicate those requirements that in his opinion are not satisfied, founding and motivating its resolution, and the MP will practice the necessary steps to properly integrate the corresponding criminal investigation. If evidence is not provided by the offended party or by the MP within 60 days from the next in which these resolutions have been notified to them, or if they are not sufficient to issue the orders in question, the cause will be dismissed. 2. ORDER OF FORMAL PRISON The formal prison or preventive prison order ends with the pre-instruction period, beginning the investigation. Within 72 hours after the moment the accused is at the disposal of the judge, the order of formal imprisonment will proceed, if the judge proves the following requirements: 1. That a preparatory declaration of the accused has been taken, in the manner and with the established requirements or that it is recorded in the file that the accused refused to testify; 2. That the body of the crime that has a deprivation of liberty indicated is verified; 3. That the probable responsibility of the accused is demonstrated; 4. That some circumstance exempting from liability or extinguishing the criminal action is not fully proven in favor of the accused; and 5. The names and signatures of the judge who issues the decision and of the authorized secretary must be included. 3. CAR OF SUBJECT TO PROCESS Said order is a resolution reached by the judge, within the constitutional term of 72 hours, when he considers that there are bases to continue the process, since the body of the crime and the probable responsibility of the accused have been verified. It is dictated in the case of crimes that are not punished with a custodial sentence. |
CONCLUSION
The formal prison order is a penalty imposed by the legislator as long as they have already gathered the necessary elements to exercise said order, so taking into consideration the body of the crime and the probable responsibility which the public prosecutor integrated from the first stage that is the instruction where all the elements are taken into account which can reach the legal truth which the judge takes into account and therefore the judge determines the legal situation of the accused today.
The formal prison order, also called preventive detention, is confirmed as homologated or orders a precautionary measure restricting physical freedom. Confirmation, if the court had previously ordered the arrest; homologation, if any person or authority other than that of the court had already imposed it; or orders it, if until then the arrest had not been ordered. The preventive detention order is of the same nature as the preventive detention. Both involve the precautionary measure restricting freedom. Detention is a provisional measure, but more provisional in time than preventive detention, which without external care in language could be called “definitive, but within preventive detention”, which reveals a contradiction, but without any doubt is picturesque and illustrative. Against the order of preventive detention is what in Mexico is called "freedom order", which would be a resolution to release custody. this order of liberty is often also confused with the decision denying prosecution, which is wrong, since there can be a decision denying prosecution, which is wrong since there can be a resolution of freedom of custody,but order the final prosecution. For example, in those processes where the crime subject to the process does not have a "corporal" or custodial sanction, and the subject must be prosecuted.
Therefore, taking into account said indications, the judge gathers the necessary elements and issues the formal prison order against the accused, The formal prison order is issued after the 72 hours the judge has to determine the legal situation of the indexed and in which it is established that there are sufficient elements to presume the probable responsibility of this; It is the beginning of the criminal procedure, and not as they commented that it is the sentence, the sentence comes much later, passing the investigation and conclusions stage. Otherwise, when it is determined that there are no convictive elements that presume the commission of the crime, the judge issues an acquittal and leaves the accused free.
BIBLIOGRAPHY
- TREATIES ON CRIMES AND PENALTIES IN MÁRQUEZ DE BECARRIA
- FORENSIC PRACTICES OF THE PUBLIC MINISTRY, LIC. AMANDO TAPIA IBARRA, EDITORIAL SISTA, PAG.36-38
- CRIMINAL PROCEDURE LAW, EDUARDO LÓPEZ BETANCOURT, EDITORIAL COLLECTION OF LEGAL TEXTS, 123-128.
- CRIMINAL PROCEDURE LAW, JORGE ALBERTO SILVA SILVA, EDITORIAL OXFORD, PAG. 301-311.
- CHIAPAS CRIMINAL AND CRIMINAL PROCEDURES CODE.
- MEXICAN LEGAL DICTIONARY, EDITORIAL PORRUA.
