The guarantee of the formal prison order, is a resolution issued by a judge in which pre-trial detention is given, this Guarantee is found in Article 19 of our Magna Carta, which specifically details what it consists of.
However, it is important to mention that it is a precautionary measure, in which the accused is subject to preventive detention of liberty, in order to guarantee their presence throughout the criminal proceedings against them; The Writ of Formal Prison is not given for the purpose of prejudging the acts and responsibility of the accused, but rather it is for the purpose of ensuring that he is not removed from the action of Justice.
The formal prison order is a resolution that is given by the judge within 72 hours, in which there are specific data such as the way, place, circumstances and time in which the crime was carried out, but always taking into consideration that they are the data that the Preliminary Inquiry yields.
When the process occurs, the formality of it cannot be lost, and the entire process must be followed for the crime that started, that is, for the crime that is mentioned in the records.
Like any resolution issued by a judge, it has specific requirements that it must contain, which are:
- The preparatory declaration of the Defendant The accreditation of the body of the crime to be imputed Existence of the evidence
This guarantee is of importance for the defendant since it is intended that his guarantees are not violated and he can have a correct defense in the process, the Guarantee of the formal prison but above all it is also a guarantee of the offended since they guarantee that the person imputed will not subtract from the criminal action.
The formal prison order has distinctive characteristics; that is, a formal prison order must always contain:
- Place and date in which it is dictated The exposition of facts that are imputed to him The time, place and mode of the commission of the crime The narration of data that the preliminary investigation throws out Specify the crime for which he was brought in the process Signature of the judge and secretary
Why must the judge and his secretary sign the formal prison order? Well, as I mentioned before in this Formal Prison Auto Warranty, formalities of process must be specifically given, and it is important that both people sign that resolution, since the judge is the one who dictates it and his secretary signs by virtue of An authorization.
Reasoning on this topic, when is the formal prison order issued? The Order of Formal Prison is given when the Crime that is being pursued and for which the process will be carried out merits corporal punishment.
No arrest that is given before a Judicial authority can exceed the constitutional term of 72 hours to exercise a Writ of Formal Prison after the suspect is placed at the disposal of the authority.
When the Prosecutor deems it appropriate and only at his request, the term to issue the Order of Formal Prison may be extended, but without delay, when the detention is prolonged to the detriment of the Prosecutor, he will be sanctioned by the criminal law for violating his guarantees thereof.
When the accused enters an establishment and does not receive an authorized copy of the Formal Prison Order of the same or of the request for an extension requested by the same Prosecutor, the Judge who issued the Resolution must be informed of this fact to provide the copy of said Resolution, however, if the aforementioned certificate is not received within the following 3 hours, the accused must be released immediately.
When the Resolution of the Formal Prison Order is issued, one of the main formalities is that the crime for which it is brought to trial is expressly established, and while the process is forcibly carried out, the crime stipulated above must be followed, if within the process that is being carried out, it appears that one or more crimes other than those pursued in that process by the same person have been committed, must be the subject of a new Prior Investigation, even though later an accumulation of both could be decreed if deemed pertinent.
Although it is true that the Formal Prison Order is given for crimes that deserve corporal punishment, there is another resolution called subjection to process; The Subjection to Process occurs within the constitutional term of 72 hours and is carried out at the moment in which it is corroborated that there are bases to continue with the process, this being that the body of the crime has been verified and the probable responsibility of the accused, this Subject to process is dictated in the case of crimes that are not punished with a custodial sentence.
When the Order of Formal Prison is not given with each and every one of its requirements, the Order of Freedom is given, which we find expressly in ARTICLE 167 Federal Code of Criminal Procedures, which tells us:
If within the legal term the necessary requirements are not met to issue the formal prison order or the process order, a release order will be issued for lack of elements to process, or not subject to process, as appropriate, without prejudice to that by subsequent means of evidence, the accused be acted again; in these cases the dismissal will not proceed until the criminal action of the crime or crimes in question prescribes.
Also in these cases, the public ministry may promote evidence, in exercise of the powers conferred on it by the second paragraph of Article 4, until meeting the necessary requirements, based on which, if applicable, it will again request the judge to issue an order of apprehension, under the terms of article 195, or of appearance, as appropriate.
That is, when the body of the crime, or the probable responsibility of the accused, is not accredited, it is said that the necessary requirements were not met to be able to issue the Judge's Resolution, with this we refer to the FORMAL PRISON ORDER when they are crimes that they deserve CORPORAL PENALTY, and therefore the Order of Freedom will be given for not having sufficient evidence, in these cases The Public Ministry may promote evidence until it can gather the necessary evidence and based on them again request an Order of Apprehension or appearance of the accused.
Many have thought that preemptively depriving them of their liberty violates Guarantees, however, in a criminal injunction it was said:
PREVENTIVE PRISON. In the formal prison order in which no penalty is imposed on the accused, but only his freedom is temporarily restricted, to perfect the instruction of the process, it is not a violation of guarantees.
Criminal protection under review 7360/44. Bosquez Martínez Antonio. January 16, 1945.
Unanimity of four votes Absent: José Rebolledo. The publication does not mention the name of the speaker.
When the FORMAL PRISON ORDER exists, the Probable Responsible is suspended the prerogatives of the Citizen, which are established in Article 38 of the Political Constitution of the United Mexican States, which occur in crimes that deserve corporal punishment and not are violators of guarantees, in Article 38 expressly tells us:
Article 38. The rights or prerogatives of citizens are suspended:
- For lack of compliance, without just cause, of any of the obligations imposed by article 36. This suspension will last one year and will be imposed in addition to the other penalties that the law will indicate for the same fact; For being subject to criminal proceedings for crime that deserves corporal punishment, counting from the date of the formal prison order; During the expiration of a corporal sentence; For laziness or customary drunkenness, declared in the terms that the laws prevent; For being a fugitive from justice, since issue the arrest warrant until the criminal action prescribes; and By executory sentence that imposes such suspension.
The law will determine the cases in which they are lost and the others in which the rights of citizens are suspended, and the way to do the rehabilitation.
