The present work represents a personal point of view on the subject in question, by means of which I intend to help clear up some doubts about the suspension of the act claimed in the amparo. Hoping that it will serve for students and practitioners of law and in general for anyone who wants to learn more about legal issues.
Talking about the principle of the preservative function of the suspension is really interesting, since it is not only a simple stopping an act, it is more than a precautionary measure or measure. It is a thorough and objective analysis of a series of questions that must be presented in order to grant it or not. Issues that, although they are not indifferent to the main issue, which is to resolve the merits of the amparo by declaring whether the act claimed is unconstitutional or not; they are deconcentrated from it.
Thanks to the suspension, the petitioner for protection is provisionally protected, since the action of the responsible authority is stopped while the trial is being processed and it is finally resolved whether or not the act violates some constitutional postulates.
The suspension of the claimed act is a fundamental institution in the judgment of guarantees, since with its concession the matter of the same is kept alive and the damages that the execution of the act may cause are avoided to the complainant. Therefore, I can say that the suspension is of the utmost importance in order to achieve the ideal aim of the protection, which is not to be violated in the constitutional guarantees.
I.- Concept
Etymologically the word suspension derives from the Latin suspensio, suspensionis, which is the action and effect of suspending. In turn, the verb "suspend", from the Latin suspend, in one of its meanings means: "stop or defer an action or work for some time".
Next I will give some definitions of recognized authors:
Eduardo Pallares.
"… it is a precautionary measure that in the amparo trial is equivalent to the precautionary measures and, among these, to the precautionary measures that are carried out in the trials of the common order."
Rafael de Pina and José Castillo Larrañaga.
"It is a precautionary measure characteristic of the amparo trial…"
Ignacio Soto and Gilberto Liévana.
"It is a precautionary measure, to which evocations mention it as a precautionary measure, created in order to obtain legal protection against imminent damage or harm."
Ignacio Burgoa.
"… it is not a constitutive order, but rather the maintenance or preservation of an existing situation, preventing it from being altered with the execution of the acts claimed, or due to their effects and consequences."
Juventino V. Castro.
“… It is a precautionary measure in the amparo procedures, of a merely instrumental nature to preserve the matter of the process, and whose content takes the form of a mandate to ensure compliance and the execution of another principal that may order the cancellation of the positive conduct or refusal of the public authority, temporarily ceasing its mandatory effects while the constitutional controversy is resolved "
In short, the suspension is the judicial decision ordering to temporarily stop the performance of the claimed act while the constitutional issue raised is resolved; Therefore, such determination is intended to paralyze or impede the activity that the responsible authority develops or is about to develop and constitutes a precautionary measure that the complaining party requests or that is decreed ex officio in order that the damage or losses that could cause the execution of the act that claims are not carried out.
II.- Background
In consideration of the doctrinaire Juventino V. Castro, the antecedents of the suspension of the act were inspired by the legal tradition of New Hispanic law; arguing that the amparo was undoubtedly influenced by the old formula of "obey and not comply", which would necessarily have to be continued through the appeal, true historical antecedent of our suspension in the amparo.
Juventino V. Castro is fundamentally based on a brilliant article by Víctor Tau Anzoátegui, where he explains how this formula, and this resource, was handled in Indian law.
Of which Juventino mentions: "Indeed, the formula, which originated in the thirteenth century, mainly in Castile, originally contains the Letters Drawn by the King against Law, jurisdiction, or that are harmful to the community".
It is true that the appeal and the suspension of the amparo have similarities, but there is a point where they are totally different, since the appeal was of a political nature and by no means one of a judicial nature, since it was not interposed and it was processed within a trial, but simply as an opposition against a law that was considered harmful to the community. For this reason, Juventino says that it seems more like an institution homologous to the protection against laws, but processable by non-judicial means.
This recourse was intended to safeguard that failure to comply with the royal office did not have the sense of rebellion nor did it mean contempt for the rule, but, on the contrary, was framed within an attitude of scrupulous control of legality, both in the regarding the individual as well as the community. This is similar to the provisions of the first paragraph of section X of Constitutional Article 107, which admits the suspension of the acts claimed; but it warns that the nature of the alleged violation, the difficulty of repairing the damages that the injured party may suffer with its execution, those that the suspension causes to injured third parties and the public interest must be taken into account.In other words, our constitutional provision takes into account (evidently by long-practiced tradition) that suspending the act claimed is suspending the force of authority, and that for all this it must be very careful not to affect said authority.
On the other hand Andrés Lira Gonzáles maintains the existence of a true colonial protection, that is, that procedure that in the colony protected people in their rights, when they were altered or violated by offenders, that is, authorities who carried out unjust acts against the existing legal order, a procedure by which the viceroy, upon learning of the claim of an injured party, became aware of the responsibilities of the offender, and could finally issue an injunction for protection to protect him in the violation of his rights.
Lira Gonzáles speaks of the suspension of the acts claimed, stating that said suspension can be found in almost all colonial amparos, since in the orders given to the mayors, corregidores, and in general executors of the injunction, it was warned to such authorities that the acts of the offense cease
This is an evidently different reference regarding the appeal, taking into account that the latter refers to a suspension carried out by a mandated authority that considers that the mandate contains an injustice or an error, and this new one to which it refers Lira Gonzáles, as can be seen, could only be decreed at the request of the victim.
In one way or another, the case is that when the protection in the Reform Act of 1847 was created in the middle of the last century, it was born into regulatory life, already containing the suspension, without being able to seriously affirm what the true antecedents are. suspension.
III.- Suspensive judgment…
The legal tradition regarding practices that facilitated the application of suspension procedures against the full effects of the mandates of authority, were an excellent bridge of passage for their establishment in our constitutional process without major hesitation. But there is a characteristic of the suspension under protection that goes beyond the philosophy and the raison d'être of the measures or precautionary measures; This is what the current section X of article 107 of the Constitution requires in its first paragraph, which literally says:
The acts claimed may be suspended in the cases and through the conditions and guarantees determined by law, for which the nature of the alleged violation, the difficulty of repairing the damages that the victim may suffer, will be taken into account. with its execution, those that the suspension originates to injured third parties and the public interest.
As can be seen, the suspension is not an automatic act or a funny concession based on whims. As it is a "noble" institution of legal significance, the Constitutional Judge, when making the decision to grant the suspension, is subject to requirements for weighing the specific case, which are necessarily linked to the nature of the alleged violation. The difficulty of repairing the damages that the injured party may suffer with its execution is practically a breakdown of the alleged violation, in relation to its reparability in the event that the suspension is not granted. The damages and losses that the suspension originates to third parties, will give content to the guarantee that must be granted to enjoy the benefits of the suspension, if it is decreed.Therefore, the substantial element that is announced as main is the evaluation of the public interest that may be at stake for the granting of the suspension. In other words, carefully assess whether or not the suspensive mandate affects the public interest.
What stands out from this, as the heading of this section says, is that: suspension is more than temporarily rendering an act ineffective; because the practice - and not the norm - has led it to become a summary judgment deconcentrated from the main business, but not indifferent to it.
Paraphrasing what was said by Juventino; This precautionary order seeks to preserve the matter of the guarantee judgment, the content of which is in the form of an insurance mandate and the execution of another main order that may order the cancellation of the planned conduct, positive or negative, of an authority, temporarily ceasing its mandatory effects while the amparo is resolved.
Therefore, it can be said that the primary object of this precautionary measure is to keep the matter of the amparo alive, preventing the act that motivates it, when irreparably consummated, from making the protection of Federal Justice illusory for the injured party, avoiding the latter the damages that the execution of the act that you claim could cause you.
IV.- Suspension of the Claimed Act
By virtue of the suspension, the act that is claimed is suspended, while it is decided if it is a violation of the Constitution; It is a means of protection that, within the amparo procedure, the law grants to complainants against the act of authority, since the Judge, before whom the claim is presented, before thoroughly studying the case that is brought to his consideration, receiving any evidence and knowing in a certain way if there is a constitutional violation, either ex officio or at the request of a party, suspends the execution of the act (provisional suspension); Subsequently, by means of a summary procedure, which is reduced to a hearing in which the complainant, the responsible authority and the Public Ministry are heard, it determines whether this suspension is definitively granted until the guarantee judgment is resolved.
In other words, suspension always appears under two aspects, that is, as a momentary temporary event, and we could even say instantaneous and as a temporarily prolonged but momentary situation.
According to the content of the precepts 122, 123, 124, 125 and 131 of the Amparo Law, the suspension of the act claimed in the guarantee trial, from the point of view of its origin, can be classified as suspension of office and suspension at the request of the party.
Article 122: ex officio suspension proceeds:
I.- In the case of acts involving the danger of deprivation of life, deportation or exile or any of those prohibited by article 22 of the federal constitution;
II.- In the case of some other act, which, if it were to be consummated, would make it physically impossible to restore the complainant in the enjoyment of the individual guarantee claimed.
The suspension referred to in this article will be decreed outright in the same order in which the judge admits the claim, communicating without delay to the responsible authority, for immediate compliance, making use of the telegraphic means, in the terms of the third paragraph of article 23 of this law.
The effects of the ex officio suspension will only consist in ordering that acts that directly endanger life cease, allow the deportation or exile of the complainant or the execution of any of the acts prohibited by article 22 of the Constitution; and in the case of those provided for in section II of article 123 of the amparo law, they will be those of ordering that things be kept in the state they keep, the judge taking the pertinent measures to prevent the consummation of the acts claimed.
As this article clearly explains, the ex officio suspension will only be given for extreme situations that, if presented, would cause a loss to the complainant in a way that is impossible to repair. Therefore, the judge immediately upon entering the amparo claim orders the provisional suspension while analyzing whether to grant the definitive one in order to proceed with the merits of the matter, which is to determine whether or not there was a violation of guarantees, this through the judgment of protection.
At the request of the party:
Article 124. Outside of the cases referred to in the previous article, the suspension will be decreed when the following requirements are met:
I. That the injured party request it.
II. That no damage continues to the corporate interest, nor are public order provisions violated.
It will be considered, among other cases, that if these damages are followed or those violations are made, when, if the suspension is granted:
a) The operation of centers of vice, crime, the production and trade of narcotic drugs continue;
b) the consummation or continuation of crimes or their effects is allowed;
c) the price increase is allowed in relation to basic necessities or goods of necessary consumption;
d) the execution of measures to combat serious epidemics, the danger of invasion of exotic diseases in the country, or the campaign against alcoholism and the sale of substances that poison the individual or degenerate the race is prevented;
e) non-compliance with military orders is allowed;
f) there is damage to the environment, to the ecological balance or that for that reason affects the health of people; and
g) the entry into the country of merchandise is allowed, the introduction of which is prohibited by law or is in any of the cases provided for in article 131 second paragraph of the Political Constitution of the United Mexican States; noncompliance with the rules relating to regulations and non-tariff restrictions on export or import, except in the case of countervailing duties, which will adhere to what is regulated in article 135 of this law; they fail to comply with the Official Mexican Standards; national production is affected;
h) the continuation of the domain extinction procedure is prevented in any of its phases, provided for in the second paragraph of article 22 of the Political Constitution of the United Mexican States, except in the case that the complainant is not involved in the procedure, situation in which the suspension will proceed, only if with its continuation the damage or injury that may be caused to the complainant is irreparably consummated.
III. That the damages and losses caused to the injured party with the execution of the act are difficult to repair.
The District Judge, when granting the suspension, will endeavor to fix the situation in which things will remain and will take the pertinent measures to preserve the matter of the amparo until the termination of the trial.
Outside of the cases in which it is granted ex officio, the suspension as stated in article 124 of the Amparo Law is only granted at the request of the aggrieved as long as the social interest is not harmed or public order is violated and that it is difficult to repair. Therefore, after carefully studying whether or not there are such damages and violations, the judge grants or denies the suspension.
Article 125. In the cases in which the suspension is appropriate but may cause damage or harm to a third party, it will be granted if the complainant grants sufficient guarantee to repair the damage and compensate the damages that were caused with it if he does not obtain a favorable judgment in the trial. of protection.
When the suspension may affect the rights of the injured third party that are not estimable in money, the authority that is aware of the protection will set the amount of the guarantee at its discretion.
Said guarantee is a way of assuring the third party in the event of suspension, or the complainant in case of rendering it without effect (article 26 of the Amparo Law; counter-guarantee) that their "ideal right" is safe, and that if the complainant did not obtain a favorable judgment - and the suspension was granted - for which the suspension should not have been carried out, in the first case, the third will have a way to recover the losses that have been caused. Or if on the contrary, as in the second case, the third party offered a counter-guarantee, leaving the suspension without effect, in such a way that the complainant was harmed by it and in the end the protection was granted, said complainant has the payment of the damages and damages.
Article 131. Once the suspension is promoted in accordance with article 124 of this law, the District Judge will request a prior report from the responsible authority, who must render it within twenty-four hours. Once said term has elapsed, with or without a report, the hearing will be held within seventy-two hours, except in the case provided for in article 133, on the date and time that have been indicated in the initial order, in which the Judge may receive only the documentary or visual inspection evidence offered by the parties, which will of course be received; and hearing the allegations of the complainant, the injured third party, if any, and the Public Ministry, the Judge will resolve in the same hearing, granting or denying the suspension or whatever is appropriate in accordance with article 134 of this law.
In the case of any of the acts referred to in article 17 of this law, the complainant may also offer testimonial evidence.
The provisions relating to the admission of evidence at the constitutional hearing are not applicable to the suspension incident; The complainant may not be required to propose testimonial evidence, in the case referred to in the preceding paragraph.
The suspension in the Amparo Trial is that provided by the court (order or resolution that grants the suspension ex officio at the request of the party, provisional or definitive), creating a situation of paralysis or cessation, temporarily limited of a claimed act of a positive nature Consisting of preventing for the future the beginning or initiation, development or consequence of said act, from the aforementioned stoppage or cessation, without invalidating the states or events prior to these and that the act itself would have caused.
V.- Aviacsa case
The Secretary of Communications and Transportation suspended the flights of the commercial airline Aviacsa, after an extraordinary verification in which according to its previous and justified reports; 280 anomalies were detected in the Aviacsa aircraft during the aforementioned verification.
For its part, Aviacsa promotes a claim for protection and achieves the annulment of the suspension of operations imposed by the Ministry of Communications and Transportation, that is, and the redundancy valid, the District Judge granted the provisional suspension and later the definitive suspension of the act claimed, the quan was the suspension of flights that the SCT had decreed.
But as we well know, the provisional suspension of the claimed act does not mean that the definitive one will be granted, much less that the protection and protection of federal justice will be granted.
In response to the suspension granted by the District Judge, the SCT filed an appeal for review before the Collegiate Circuit Court, achieving the revocation of the definitive suspension that allowed Aviacsa to restore its flights, being that the decision of the second Court is irrevocable the The airline will not be able to provide its services while the amparo fund that it filed against the SCT's decision is resolved, in which it prohibited the company's flights after a series of reviews that determined that its flights are not safe. This is if the judge, when issuing the resolution of the fund, decides to grant the protection to Aviacsa, otherwise it will remain on land.
AVIACSA case or rather Sin Alas Para Volar, which could be the next title of a classic Mexican film alluding to a national reality that corresponds to the interests of a few. The delicate thing is that they are affecting not only the owners of the airline, but also citizens, the tourism sector, job creation, the economy and are leaving many travelers without flying.
Suspension, as stated in article 124 of the Amparo Law, is only granted at the request of the aggrieved, provided that the social interest is not harmed or public order is violated and that it is difficult to repair. Therefore, after carefully studying whether or not there are such damages and violations, the judge grants or denies the suspension.
Therefore, in this case, I consider that the suspension of the act claimed should have been given definitively while the merits of the matter were resolved in the guarantee trial. Since it is evident that the suspension of the act in favor of aviacsa not only affects it but seriously injures the public interest; since this company is a source of employment for hundreds of citizens, regardless of the fact that for many users it is a means of traveling economically which they will not be able to access until the fund is resolved, if the resolution is to grant aviacsa protection, otherwise a large number of these users will be grounded and the employees out of work.
VI.- Considerations
It is worth noting that from what has been studied so far it is evident that the suspension of the act claimed is one of the most important procedural moments of the constitutional trial. For the protection of individual guarantees enshrined in the Constitution through an amparo trial, finds its first line of defense through the suspension of the act claimed, which as a precautionary measure, protects and provisionally protects the rights of the governed while the trial lasts.
The suspension as a part of Amparo, must also be interpreted based on this object, because through it its justification is found, or rather its explanation: The suspension preserves the subject of the trial, prevents further damage to the complainant, facilitates the restitution of the violated guarantees, prevents the violation of the guarantees from being consummated or damages being committed.
The suspension of the claimed act is a precautionary measure that is processed in the form of an incident, in the indirect protection proceedings followed before the district courts; or before the responsible authority - judicial tribunals, administrative tribunals, labor tribunals, agrarian tribunals or military tribunals -, in cases of direct amparo lawsuits followed against final judgments, final awards or resolutions that put an end to the trial and whose class of trials of protection are the knowledge, processing and decision of the Collegiate Circuit Courts.
This suspension is a procedural figure of great importance and serves to stop or prevent, as a precautionary measure, the execution of the acts that are claimed by the authorities indicated as responsible in an amparo trial. The fact that the provisional suspension of the claimed acts is granted does not imply that the definitive suspension is granted, nor that once it is granted, the protection and protection of the union's justice will be granted to the aggrieved or complainant, even when: definitive suspension is to preserve the matter of the trial and avoid damage to the victim.
Everything concerning the nature of the suspension is developed, dealing with the principles of the appearance of good law and that of the danger in the delay and the elements necessary for the granting of the provisional suspension, are treated in a diligent manner, explaining the differences. between legal interest and damage for the purposes of the protection.
As the origin of the suspension of the claimed act requires an instance of a party, or be ex officio, considering the nature of the act claimed, with simplicity, it analyzes the requirements demanded by the law both with regard to the suspension in the amparo trial indirect as in the direct amparo trial, defining the concepts of public order and social interest.
It is said that the issue that concerns the suspension of the claimed act is accessory or annexed to the main one, which is the substantive issue in which the constitutionality of the attacked authoritarian action is disputed, because without the second the first cannot arise, since that it is a sine qua non condition that the complainant or aggrieved request the protection of the Federal Justice, so that they have the option to be granted the suspension of the act that they claim from the responsible authority.
From the considerations that we have formulated, it can be deduced that as an accessory to the constitutional controversy raised by the complainant, a legal conflict arises between the complainant, on the one hand, and the responsible authority and the injured third party (if any), on the other, on the origin or inadmissibility of the definitive suspension, said conflict is formed by the opposing claims of such procedural subjects since the complainant demands that the aforementioned precautionary measure be granted and its counterparts that it be denied. Therefore, the resolution issued by the courts when settling the aforementioned legal conflict is strictly jurisdictional, and as it falls on an accessory issue of an incidental nature, it receives the qualification of interlocutory, not having, therefore, the nature of order, cone in shape undue is called by the Amparo Law.The suspension interlocutory may have threefold content, namely: granting of the definitive suspension, Denial of this precautionary measure or Declarative that the respective incident remains without matter.
It is unnecessary to note that the act claimed, in order for it to be suspended, must be of a positive nature, that is, that it implies pronouncement, order or execution. In addition, the suspension of the act claimed, in general, never has effects restitutovios of the enjoyment or enjoyment of the violated rights, since such effects are exclusive of the constitutional sentence that grants the complainant federal protection, but exclusively of paralysis or temporary cessation of the beginning, development or consequences of the claimed act.
However, in relation to the foregoing, the suspension can operate in two different ways: the first is that it results in the paralysis or cessation of the initiation or birth of the claimed act, avoiding its realization from its beginning or since it is about run; Or, it prevents the consequences of the act itself or its total and full development. These two ways in which the suspension of the claimed act can operate, derive logically from article 11 of the Amparo Law, which is the precept that establishes what should be understood by responsible authority, stating that this is the one that tries to execute or the to execute the claimed act.
The suspension cannot anticipate the effects of the sentence that is pronounced regarding the merits of the amparo, nor does it therefore constitute any provisional protection, for the simple reason that in order to grant or deny it the control body must not take into account the possible unconstitutionality of the acts claimed but exclusively the generic conditions of their origin, such as: that the acts that are being fought are true; that being true, its nature allows its paralysis, and that; operating these two circumstances, its granting does not affect the social interest or contravene provisions of public order. It is evident that these three conditions to which the origin of the suspension benefit is subject, are not linked to the fundamental question that arises in the amparo trial,which is the unconstitutionality of the claimed acts. For this reason, the suspension does not amount to any provisional amparo, nor does it provisionally anticipate any effect of the amparo judgment.
Therefore, to conclude I add that in my opinion, generated after research, study and breakdown of the principle of the preservative function of the suspension; I think the legislator thought that "it is better to favor the unjust than to affect the just." Through a suspension that perhaps in some cases is not deserved, but in others it is.
Well, it is more than evident that said suspension tries to safeguard, as far as possible, the constitutional guarantees of the governed.
Although this is sometimes only an ideal that is restored with a dollar sign.
The importance of this legal figure is so great that, most of the time, the system established in our Constitution to protect the individual guarantees of the governed would be practically useless if, in parallel to the main process, matters relating to the suspension of the act claimed, since with its concession the full compliance of a future impartial and legal ruling is assured.
Bibliography
1. Burgoa Orihuela, Ignacio. E amparo trial, Mexico. Porrua. 1975.
2. From Pina Vara, Rafael and Castillo Larrañaga, José. Institutions of civil procedural law. Mexico. America. 1946.
3. Lira González, Andrés. The colonial amparo and the Mexican amparo trial (New Spanish history of the amparo trial). Mexico. Fund of Economic Culture. 1972.
4. Pallares, Eduardo. Theoretical and Practical Dictionary of the Amparo Trial, Mexico. Porrua. 1967.
5. Soto Gordoa, Ignacio and Liévana Palma, Gilberto. The suspension of the act claimed in the amparo trial, Mexico. Porrua. 1959.
6. V. Castro, Juventino. Guarantees and Amparo. Mexico. Porrua. 1991.
7. Supreme Court of Justice of the Nation. The Judicial Power gives the Federation for Youth. Mexico. McGraw Hill. 2004.
Legislation
1. Political Constitution of the United Mexican States
2. Amparo law
Internet pages
1. www.scjn.gob.mx.
2. www.bibliojuridica.org.
3. www.juridicas.unam.mx.
