Introduction
One of the main problems that our country currently suffers along with public insecurity, violence, drug trafficking and the lack of legal security is undoubtedly corruption, which is also largely a cause of those.
The alarming numbers of Mexicans living in conditions of extreme poverty are notable, rightly offending the news of fortunes formed by unfaithful public servants, who using the position in which they have been placed to serve the country, a federal entity or a municipality They betray the promise of honesty and rectitude cast by them when protesting the performance of the corresponding position.
I am definitely against the public servant having to demonstrate the lawfulness of the assets that make up his assets when he has been accused of illicitly enriching himself.
In order to better understand the issue of illicit enrichment, we will analyze what is meant by a public servant. In the words of Maestro Acosta Romero, (Acosta, 1995) the public servant "is that citizen invested with a position, job or public function, linked by a link of legal regime, therefore to the staff of public power". Such linkage can be direct (centralized public administration server) or indirect (Parastatal Public Administration Worker). Thus, then, a special circumstance is required that constitutes what Maestro Acosta Romero sees as a legal link with the public power.
For the purposes of our study, we will refer to the public servant, in the terms that will be defined later by the different legal systems mentioned.
An important point to elucidate in this work is to determine who can be placed in the assumption described in the Law on the Responsibilities of Public Servants, arguably according to "Doctor José Luis Soberanes" (Fernández, 1996) who is a servant public anyone who manages or applies federal financial resources:
- Representatives of popular election. Members of the Federal Judicial Power and Judicial Branch of the Federal District. Any person who holds a job or commission of any nature in the Federal Public Administration or in the Federal District. Governors. Local Deputies. Magistrates in the Superior Courts of Justice.
The Fourth Title of the Political Constitution of the United Mexican States, called Of the responsibilities of public servants, in its article 108 states: for the purposes of the responsibilities referred to in this title, representatives of popular election shall be considered as public servants., to the members of the Federal Judicial Power and the Judicial Power of the Federal District, the officials and employees and, in general, to any person who performs a job, position or commission of any nature in the Federal Public Administration or in the Federal District, as well as to the servers of the Federal Electoral Institute, who will be responsible for the acts or omissions they incur in the performance of their respective functions. (Miguel, 2012)
Finally, it is the Federal Criminal Code itself that clearly specifies who should be considered as public servants for the purposes of criminal liability only.
Article 212 of this order states:
For the purposes of this title and the subsequent one, any person who holds a job or commission of any nature in the Centralized Federal Public Administration or in that of the Federal District, decentralized organizations, majority state participation companies, organizations and companies assimilated to these public trusts, in the congress of the union, or in the Federal Judicial and Judicial Powers of the Federal District, or that manage federal economic resources. The provisions contained in this title are applicable to the governors of the states, to the deputies to the local legislatures and to the magistrates of the local courts of justice, for the commission of the crimes provided for in this title, in federal matters.
The same penalties provided for the crime in question will be imposed on any person who participates in the perpetuation of any of the crimes provided for in this title or in the subsequent one. (Federal Penal Code, 1931)
Historical background
In Mexico, the antecedent of illicit enrichment can be found in the residence trial that was installed when we were a Spanish colony (Aranda, 1999). Through this trial, the intention was to demonstrate the integrity of the public service and this became an indispensable requirement to be able to maintain his position and aspire to a new one. It was precisely Hernán Cortes who was subjected to this trial for the continuous complaints about his wealth consisting of gold and animals, mainly horses, and had to demonstrate that all of this had not been the product of the improper use of public power.
In independent Mexico, the antecedent of the figure under study is found in the inexplicable enrichment of that law of responsibility of the officials and employees of the federation, the District and federal territories and the high officials of the states that was issued in 1939.
This was an administrative law issued by President Lázaro Cárdenas to administratively sanction those officials whose assets increased disproportionately in relation to their income due to the salary paid by the state. In this sense, this doubt about the legal origin of the illicit enrichment gave rise to an investigation by the public prosecutor's office to try to demonstrate whether the server had committed any crime. But if the public prosecutor did not find evidence that criminally accused the official, then he was asked to demonstrate the legal origin of the increase in assets.
It is necessary to emphasize the latter and it is that only the server or public official was sanctioned administratively who did not demonstrate the legal origin of his enrichment when the public prosecutor could not demonstrate that it was the product of a crime in the public service.
Development
Like all human action, corruption is presented to the individual as a way to access something that represents a good. This apparent benefit that it provides, to individuals or groups, is obtained in exchange for deceiving society, which is who pays.
A great constitutional, administrative and criminal reform was carried out, with which the illicit enrichment passed as it is from the law of public servants to the penal code and that is the origin of the current article 224, which under the heading of illicit enrichment of public servants sanctions the server that does not prove the legal origin of the increase in its assets.
Criminal law must be characterized by incriminating conduct. It is these behaviors that must support criminal responsibility and not a situation or the personality of the people. The person should not be punished for who she is but for what she does.
Article 224 of the current Federal Penal Code indicates (Federal Criminal Code). Whoever, by reason of his employment, will be charged a commission in the public service incurred in illicit enrichment. Also, by citing the Federal Law on the Responsibilities of Public Servants, it tells us that there is illicit enrichment when the public servant cannot prove the legitimate increase of his patrimony or the legitimate origin of the goods in his name or of those with respect to which he conducts himself. as owner.
It is worth mentioning that the Political Constitution of the United Mexican States (Miguel, 2012) states in the Fourth Title Of The Responsibilities of Public Servants, article 109 fraction III that administrative sanctions are applied to public servants for the high or omissions that affect the legality, honesty, loyalty, impartiality and efficiency that they must observe in the performance of their jobs, positions or commissions.
The criminalization of the crime of illicit enrichment speaks to us of the State's determination to contain these antisocial behaviors. It hurts a country with alarming poverty rates to see that public servants forge fortunes with bad money; that in view of the weak budgetary situation of the different governmental entities, these see their economic capacity diminished by those officials and employees who do not perform the proper function.
conclusion
Mexico deserves honest and respectful public servants of the law; Those who do not do so must face the various types of responsibility to which they are subject, as appropriate. But our country also deserves that the authorities in charge of the administration and administration of justice, as well as the laws secondary to the political constitution of the United Mexican States, respect the elementary principles that this body of laws, the highest hierarchy in our territory that consecrates in favor of its inhabitants in individual guarantees, by subjecting the criminal process to clear rules.
When it is possible to create in the authorities of the three executive, legislative and judicial powers, a true conscience of respect for the constitution and its observance on this specific issue of the crime of illicit enrichment, we will have a truer and more advanced rule of law.
We are the members of the society also guarantors of the honest performance of public functions as far as it is within our reach. For the scourge of corruption to work, the governed and the ruler are needed. Starting with our determination not to contribute to corruption, as explained, this antisocial phenomenon will diminish appreciably. In the first place, we have an obligation not to consistently avoid under any circumstance offering or giving public servants so that they may perform or cease to perform the public function entrusted to them. Here we must be forceful: this inertia is not at all positive and the demands to develop the correct aptitude commit us with senior and average officials,but more directly with those who make up the vast majority of bureaucrats and are at the first level within the governmental hierarchy: the police, the highway agent, the window clerk in charge of receiving documentation for processing services, the municipal inspector of licenses. Understand that the end of these scourges of Mexican society depend to a great extent on us.
Corruption violates the rule of law, including the basic institutions of society; It also wastes scarce resources, instills distrust among individuals, slows economic investment, slows down a country's economic growth, and makes governance more difficult.
It is very difficult to make an economic estimate of the negative effects produced by the unfaithful behavior of public servants. But surely it costs the public finances and consequently us taxpayers who make contributions to public spending in the proportion that we have. We live in a country that requires investing in its infrastructure and in many aspects of organization and education enormously; this makes it more painful to know the fortunes illicitly amassed from the public service. We have in Mexico the adequate legal instruments to stop and sanction these attitudes; however, what we do not have is the will to do so.
We also have as an governed an obligation to do: if society invites us to corruption, that is, if it asks us for a gift, we must immediately report them to the corresponding authorities, so that the bad public servant is punished. The end result of this complaint is no longer the responsibility of us, but of our officials.
For corruption to exist, I insist, it takes a corrupt on the government side and a corrupt on the side of the governed. This dire sum results in corruption, which we know hurts both the government and the governed.
The secret is in education: if we manage to form among students of all levels, the firm idea that honesty, more than a simple value, must be elevated to a way of life. Much of the problem is cultural, and it is by investing in education that we will improve.
Citizen participation plays an important role here: one must also continue on the long road to perfect government control and surveillance bodies towards public servants and the correct application of public resources; these and other measures are needed. Only in this way will we be able to reduce this antisocial phenomenon and achieve a country with better services, better education and less corruption.
Bibliography
- Federal penal code. (August 14, 1931). Retrieved on August 7, 2013, from the Federal Penal Code UNAM: info4.juridicas.unam.mx/ijure/fed/8/Acosta, R. (1995). Mexican Bureaucratic Law. Mexico: Porrua.Aranda, D. (1999). Illicit Enrichment of Public Servants. Mexico: Cárdenas.Fernández, S. (1996). Mexican Legal Dictionary UNAM Institute of Legal Research. Mexico: porrua.Miguel, C. (2012). Political Constitution of the United Mexican States. Mexico DF: Purrua.
