introduction
When we come across a criminal process, we generally detect a statement of facts provided by the parties, with certain arguments and contradictions. It is with reference to these facts that the court will have to decide whether they coincide with the narrated object, subject to the limits that the human being can know. Of the various versions, the judge will choose the most credible one (s) and make it unique in order to obtain the truth of the facts, never absolute for men, but only a formal truth.
II. Principles governing the evidence
Basically, we can point to four principles with the quality of guiding the development of the means of evidence, without this obstructing to affirm that they are the only ones, but the most important; These principles are: investigation, immediacy, appreciation, in doubt pro reo.
1. Principle of inquiry
It is closely linked to the activity of the judge, it refers to the fact that the judge in his search for the truth through the evidence is not linked to the statements of the participants in the process (for example, the confession of the accused); to certain attitudes of the accused (for example his failure to appear is irrelevant with respect to the central question of whether he is guilty or innocent) and, to the applications filed, being feasible that he automatically introduce the evidence that he considers pertinent. For further illustration, a reading of article 180 of the Federal Code of Criminal Procedures is enough, which to the letter states: To verify the elements of the criminal type and the probable responsibility of the accused, the Public Ministry, its assistants,the judicial police and the courts shall enjoy the broadest action to use the means of investigation that they deem conducive according to their criteria, even when they are not those mentioned by law, provided that these means are not contrary to law.
2. Principle of immediacy
It refers to the conduct that the judge must adopt before the evidence in its double subjective or formal and objective or material aspect.
The formal aspect refers to the aspiration that the judge relate as directly to the means of evidence, specifying if possible the practice of them, and the objective aspect tends for the judge to give preference to form his conviction to those means of proof more directly related to the fact, circumstance or conduct to be proved.
A characteristic example is the content of article 16 of the Federal Code of Criminal Procedures, third paragraph, which literally states: "In the process, the courts will preside over the acts of evidence and will receive the statements themselves," from which it is clear the principle of immediacy from the formal point of view, since the heads of the courts are obliged to receive the statements and other acts of evidence themselves.
3. Principle of appreciation
For Niceto Alcalá Zamora y Castillo there are four systems for evaluating evidence: the ordálico, the legal, the free, and the one of sound criticism or reasoned appreciation:
- Ordálico, is that system of appreciation of the tests that derives from the divinity, being this one who decides what is relative to the value of the test, the judge abiding by the physical results of the ordeal. Legal, this system of appreciation refers to the The situation in which the law is in charge of setting the rigorously assessed value of each test, this regime is considered absurd. Free test, in this system the judge appreciates, without any further link, the value that each test deserves, without taking care of convince about the reason for such determination.
In this system, it is only a matter of winning and not convincing, for example: in popular juries when the members only determine or pronounce on whether the accused is guilty or innocent and not the evidence provided and the value of each a.
d) Sound criticism, in this system the judge decides on the value of the evidence regardless of any legal paradigm, but based on and motivating the reason for his action.
In our country we find the application of the previous systems except the ordálico. The assessed or legal test is the system adopted by the generality of the criminal procedure codes of the country and the system of sound criticism to which the Federal Code of Criminal Procedures is accepted, as it is clear from the text of article 290 when expressly stating that « The courts in their resolutions will expose the reasoning they have had to legally assess the evidence, "which is why we can deduce that the courts are not subject to assessment rules derived from a legal appraisal, but rather to assess the means of evidence from of reasoning clearly exposed.
4. Principle in dubeo pro reo
It is based on the sense that in case of doubt it is necessary to rule in favor of the accused, it is not expressly formulated in the Federal Adjective Code, but it is in article 247 of the Code of Criminal Procedures of the Federal District, which to the letter consigns "In case of doubt, he must be acquitted." In the previous Federal Code of Criminal Procedures article 252, said principle was expressly contemplated by being consigned, in the same terms, in which the Code of Criminal Procedures of the Federal District currently provides.
III. Object of the test
1. Facts
When talking about the central object of the evidence, we refer to the facts, which will constitute the core field of application, around these, we will analyze aspects such as the admission in the process of facts of the private knowledge of the judge, the facts notorious and confessed facts.
A. The admission in the process of facts of the private knowledge of the judge
In this regard, it is worth mentioning at the outset that the judge is not a machine to administer justice, but above all a homo sapiens in genere, being practically impossible to prohibit him from thinking and contributing his thoughts to the judicial process.
For example: when the judge conducts a judicial inspection in terms of the procedural law, the judge provides insights captured from his particular conception, being clear that in those cases the judge does not act in a particular way but linked to the process and, consequently, there is no doubt regarding the contribution within the process of this type of facts and circumstances.
Only in certain cases, it is possible to admit direct entry into the process of facts of private knowledge of the judge, but then we talk about the judge behaving as a witness and not as a judge, in this case we are dealing with events other than those that the judge is aware of his or her jurisdictional activity and by virtue of this it should be clear that in order to have procedural relevance the judge must appear as a witness in a process.
IV. Concept of judicial recognition or inspection
When we try to address the problem related to the means of evidence in criminal matters, questions arise that need to be resolved in order to understand this issue with greater precision, by virtue of the existence of a series of terms around the appropriate name of the means of evidence. evidence, there are those who call them means of conviction, while for others they are justification.2 Consequently, in order to start the analysis of the issue, we consider it convenient to resolve the following: What is evidence? What is a means of proof? What is the difference between test and test medium?
It is necessary to do, before entering the subject, some reflections on the test subject of this epigraph. Judicial recognition turns out to be ideal when the objects or subjects subject to recognition can be perceived through the senses of recognition can be perceived through the senses of the judge, such as sight, hearing, taste, touch, smell, in such a way that The fact that is the subject of the Litigation can be accredited by means of the recognition made by the judge, I will try to exemplify with some cases i) one, where the litigation deals with damages generated to a property caused by the adjoining property, in such a way that offers the recognition test for the judge to move to the real estate and see the damage caused, the test will be suitable, ii) another, where the litigation is about damages,generated to a food business caused because the adjoining property has a music business and the sound is so loud that it prevents the smooth running of the food business, therefore offering the recognition test for the judge to move to the buildings and be aware of the bad smell that you have in the food business, the test will be ideal and iii) where the litigation is about damages generated to a business that teaches courses and yoga and meditation classes caused because in the adjoining property it has a business of Music and sound is so loud that it prevents the smooth running of the business, meditation and yoga, these tests will be suitable in civil matters.
Concept..- For the Uruguayan teacher Enrique Tarigo, judicial inspection is that means of proof that consists of the direct perception by the judge of a fact that is part of the object of the process or more broadly of a fact related to the process.
Likewise, for Jorge L. Kicelmanovich, judicial inspection is the direct test par excellence by virtue of which, through the common perception of the judge, he collects the observations directly by his own senses, about the things and people that are the object of the Litis or that are related to it, without means of representation, thus the witness the expert who intervenes for its recreation either through stories or technical procedures.
Through inspection, the authority, be it the Public Ministry or the judge, performs a direct verification of certain facts, through its own senses, in order to appreciate the reality of certain controversial facts.
The subject of the inspection in accordance with article 208 of the Federal Criminal Procedure Code, is everything that can be directly appreciated by the authority in charge of the matter. In all cases it must be carried out in the presence of the Public Ministry, or, where appropriate, the judge, depending on whether it is a preliminary investigation or the process.
To achieve a description of the inspected, it is possible to use, as the case may be, drawings, topographic plans, ordinary or metric photographs, molded or any other means to reproduce things, stating in the minutes which one or which of those, in what form and for what purpose they were used, the description must be made in writing, trying to clearly establish the characters, signs or vestiges that the crime will leave, the instrument or means that probably has been used and the way in which it was used.
In addition, it is possible to examine the persons present at the inspection, if they can provide useful information for the investigation. It is also feasible for the experts to be present at the time of the inspection.
On the other hand, the Federal Criminal Procedure Code indicates that it may have this character when its purpose is to assess the statements that have been rendered and the expert opinions that have been formulated. The value of the inspection is full at the federal level.
V. The subject of the inspection
From the aforementioned it is inferred that the subject of the inspection or recognition is the JUDGE, who directly perceives the controversial fact to prove through the senses; but also the code of criminal procedures of the federal district, indicates that when carrying out the inspection it is legal that the parties, their lawyers, identity witnesses, and experts that are necessary are present who will be able to make the observations they deem appropriate.
SAW. Objects of judicial inspection
As for the object of the recognition, it should not be limited to people and things since it would be to limit the scope of the test, including also places as well as the relationships between places and things.
VII. Inspection and expertise
The procedural order establishes the day and time indicated, the judge accompanied by the secretary, experts, identification witnesses and interested parties who attend the designated place to start the diligence in accordance with its stipulated rules.
VIII. Inspection classes
Long ago the test was identified only as an ocular inspection, which limited the object of the test, now it changes from ocular to judicial, covering not only the sense of sight, but also the other senses, also the inspection is limited to what is observed and smelled, distasteful, but recognition encompasses the above and implies a greater object, as already noted, encompasses places as well as relationships between places and things, but not only those, also the external qualities and characteristics perceptible by the senses, in view of the Previously, at the end of the inspection, I prefer to change it and replace it with recognition as it is more inclusive and covers the entire object of the test, so we must call it judicial recognition test.
IX. Procedure of the judicial inspection or recognition test
In this case, the procedure of the test in question will be in terms of its offering with all the requirements of the test, as well as the expert, it is necessary that when offering it, the points on which the recognition must be pointed out. For example, a case where the litigation concerns or about the damages generated to a property and caused by the adjoining property, in such a way that the recognition test is offered so that the judge can move to the property and see the damages caused in this Of course, the points may be, a, the judge will move together with his secretary of agreements to the place located in colonia maya avenida nakum de Tuxtla gutierrez Chiapas, b, with a view to the front of the aforementioned properties there is any inclination of the properties, Assert within the property the damages caused,Of course, the inspection or recognition will not be sufficient for the origin of the action since it will require an expert to determine that these damages are and were caused by the adjoining property.
It is applicable to see these jurisprudential criteria issued by the Supreme Court of Justice of the Nation.
TA]; 10a. Epoch; 1st. Room; SJF and its Gazette; Book XXV, October 2013, Volume 2; Page 1050
CRIME SCENE. GUIDELINES FOR ITS ANALYSIS BY THE AUTHORITIES AND ASSISTANT EXPERTS.
In the opinion of this First Chamber of the Supreme Court of Justice of the Nation, the study of a crime scene, or a scene related to it, is of vital importance for criminal proceedings. Due to this, it is essential that the people who interact in them act according to certain standards that guarantee that the results of the investigation are complete, objective and impartial. The final intention is that the study of such scenes can yield valid and useful elements to be evaluated by a judge, which requires optimal work in the place subjected to analysis, using technical knowledge and criminalistic procedures for each type of evidence. Indeed,The success or failure of a criminal investigation is often determined by the protection and analysis of the crime scene and its related scenes. Therefore, such proceedings must begin with an exhaustive visual inspection by the official in charge of the investigation, carrying out all the actions deemed necessary to preserve the scene, and documenting all the data deemed pertinent. Once the above has been done, access to the key elements of the procedure must be allowed: the auxiliary experts. Located in the scene under study, it is recommended that the experts carry out an in-depth search for signs, both in the scene itself, as well as in related and surrounding areas, collecting any data that may be useful for the investigation. This search must be methodical,complete, meticulous and systematic, not only in the place where it is suspected that evidence will be found, but also in those areas that are related to it. The need for such a search to be so rigorous is due to the fact that many of the evidences are not appreciable at first sight and, therefore, it is necessary to execute an adequate method to find them. Such data, which can consist of any type of object, footprint, mark, trace, signal or trace, provide scientific or technical bases to guide the criminal investigation, reinforcing hypotheses and allowing conclusions to be reached with a higher degree of reliability. The search should be done under the best conditions, that is, using the appropriate instruments, in order to proceed to describe the scene,for which the use of photography and planimetry are essential.
FIRST ROOM
; 10a. Epoch; TCC; SJF and its Gazette; Book XXV, October 2013, Volume 3; Page 1806
INSPECTION IN FIXED CENTERS FOR VERIFICATION OF WEIGHT AND DIMENSIONS PROVIDED IN ARTICLE 70 OF THE LAW OF ROADS, BRIDGES AND FEDERAL AUTOTRANSPORTATION. REQUIREMENTS THAT MUST BE CONSIDERED IN THE BULLETIN OF INFRINGEMENT THAT IS RAISED FOR THE EFFECT IN REGARD TO THE DUE IDENTIFICATION OF THE PUBLIC SERVANT COMMISSIONED TO PRACTICE IT.
Article 70 of the Federal Highway, Bridges and Motor Transportation Law establishes the power of the Ministry of Communications and Transportation, through the commissioned public servants, to inspect or verify in fixed weight and dimension verification centers operated by the secretariat itself., that federal motor transport vehicles, their auxiliary services and private transport, comply with the regulations and related official Mexican standards. Thus, from the analysis of the aforementioned precept, harmonized with the fundamental right of legal security that article 16 of the Political Constitution of the United Mexican States protects, in order to give legal certainty to the governed and avoid, consequently, the discretionary action of the administrative authority when carrying out the inspection procedure,The proper identification of the commissioned public servant who practices it must be stated in the violation ticket issued for this purpose, through a clear description of both the document by which it is identified and the office that commissions it to carry it out. For these purposes, the dates of issuance and expiration of the credential, the agency that issued it, the name and position of the person who issued it, as well as that of the person in whose favor it is granted, must be established; likewise, the date of issuance of the commission official letter, the corresponding number, the body and the head of the agency and the name of the authorized person, or, where appropriate, add to the violation ticket and to the extent that it is delivered to the individual, photostatic copy of the documents containing these data,so that you have full certainty that whoever carried out the inspection is authorized by the authority that issued the commission and empowered to carry out the act of nuisance
SECOND COLLEGE COURT IN ADMINISTRATIVE MATTERS OF THE FOURTH CIRCUIT
TA]; 10a. Epoch; TCC; SJF and its Gazette; Book XXIV, September 2013, Volume 3; Page 2649
INSPECTION TEST IN THE BUREAUCRATIC LABOR PROCEDURE. YOUR OFFER MUST MEET THE REQUIREMENTS PROVIDED FOR IN ARTICLE 827 OF THE FEDERAL LABOR LAW, OF SUPPLEMENTARY APPLICATION TO THE LAW OF CIVIL SERVICE OF WORKERS AT THE SERVICE OF THE POWERS OF THE STATE, MUNICIPALITIES AND DECENTRALIZED INSTITUTIONS OF BAE-CENTRALIZED INSTITUTIONS.
If any of the parties in the bureaucratic labor procedure in the State of Baja California offers the inspection test in the worker's personal file; Among others, it must meet the requirements indicated in article 827 of the Federal Labor Law, of supplementary application to the Law of Civil Service of Workers at the Service of the Powers of the State, Municipalities and Decentralized Institutions of Baja California, such as specify the subject matter of the same; the place where it should be practiced; the periods it will cover and the objects and documents to be examined; Likewise, it must be offered in the affirmative, understanding that the offeror must specify the documents, dates and periods over which he wants the proof to be seen, affirming its existence,in addition to specifying the facts that it intends to prove, because if it only limits itself to indicating that the documents whose existence it is intended to verify through it constitute "if there are" medical disability licenses, disability certificates, requests for vacation periods or their authorization, coupled with the fact that it does not provide certainty about the existence of the aforementioned documents, this does not comply with the requirements established in the aforementioned paragraph, incurring in a generality that guides the transformation of the proof, of the verification of an affirmed fact, an investigation with an indeterminate result, which certainly does not have an axiomatic relationship with the content of the legal premise indicated,since the nature of the evidence implies considering the notary's actions as a means of verifying a fact that is the subject of controversy, that is, an element of evidence per se, and the misrepresented nature of the offer described, leads to equating the actuary with an investigator in favor of the bidder, by supplying with his possible result arguments that were not enforced seeking to prove indeterminate facts, which is illegal.
THIRD COLLEGE COURT OF THE FIFTEENTH CIRCUIT
TA]; 10a. Epoch; TCC; SJF and its Gazette; Book XX, May 2013, Volume 3; Page 1887
MINISTERIAL INSPECTION OF THE PLACE OF EVENTS. IF THE SIGNATURE OF THE SECRETARY WHO APPEARED DOES NOT APPEAR IN THE EVIDENCE CONTAINED IN SUCH ACTION, IT LACKS EVIDENCE (LEGISLATION OF THE STATE OF CHIAPAS).
From Articles 141, 142, 143 and 150, section I, of the Code of Criminal Procedures for the State of Chiapas, it is noted that for the validity of the ministerial inspection of the scene of the events, it is required as a requirement that the Public Ministry investigating that He practices it, concurs with his secretary or assisting witnesses. Under these conditions, if the record containing said action shows that, in the part that corresponds to the name of the secretary, there is no corresponding signature, which is the representative graphic sign with which the presence of that official, said diligence has no probative value, since it does not satisfy the legal requirements for its existence and validity.
SECOND COLLEGIATE COURT OF THE TWENTIETH CIRCUIT
TA]; 9a. Epoch; TCC; SJF and its Gazette; Volume XXXIII, January 2011; Page 3182
MINISTERIAL INSPECTION DILIGENCE PRACTICED IN A COMMERCIAL PREMISES OPEN TO THE PUBLIC (PRIVATE ADDRESS). SECURING OBJECTS OF A POSSIBLE CRIME FOUND IN IT TRULY CONSTITUTES AN ILLEGAL SEARCH WHICH, WHEN PRACTICED WITHOUT THE REQUIREMENTS PROVIDED FOR IN ARTICLE 16 OF THE FEDERAL CONSTITUTION, CONSEQUENCES THE PROCEEDINGS OF EXCELLENCE OF EXCELLENCE.
From the interpretation made by the Highest Court of the Country of articles 16 of the Political Constitution of the United Mexican States, in its text prior to the reform published in the Official Gazette of the Federation on June 18, 2008 and 61 of the Code Federal Criminal Procedures, through jurisprudence 1a./J. 22/2007 supported by the First Chamber when resolving the contradiction of thesis 75/2004-PS, which can be consulted in the Federal Judicial Weekly and its Gazette, Ninth Epoch, Volume XXVI, August 2007, page 111, under: «CATEO. IN ACCORDANCE WITH THE GUARANTEE OF INVIOLABILITY OF THE DOMICILE, THE ORDER ISSUED BY THE JUDICIAL AUTHORITY, MUST MEET THE REQUIREMENTS PROVIDED FOR IN ARTICLE 16 OF THE CONSTITUTION, OTHERWISE SAID ORDER AND THE EVIDENCE THAT HAVE BEEN OBTAINED AS A RESULT OF ITTHEY LACK LEGAL EXISTENCE AND PROBATORY EFFECTIVENESS. ”, It is noted that, in order to protect the guarantee of inviolability of the home established by said constitutional precept, search warrants can only and exclusively be issued by the judicial authority, which require as requirements that: a) are in writing; b) state the place to be inspected; c) specify the subject of the inspection; d) A detailed record is drawn up in the presence of two witnesses proposed by the occupant of the searched place or in his absence or refusal, by the authority that performs the diligence. Consequently, if there is no written order from a competent judge or detailed record in the presence of two witnesses and the diligence called "ministerial inspection" is carried out in a commercial premises open to the public,where objects of a possible crime are secured, it is inconclusive that said inspection constitutes an illegal search, since the objects found in the registered place would not have existed had the search not been carried out, which, as it is unconstitutional, lacks all probative value, which directly influences the evidence derived from it, which must follow the same fate as that which gave rise to it. Without obstructing the foregoing that the registered place is a place with the aforementioned characteristics, since even so that place is still a private address protected by the aforementioned guarantee; especially that the intrusion or search of the private residence did not occur in case of flagrante delicto, that is,when in the presence of criminal acts that are being carried out or have just been carried out and in which Article 16 of the Constitution itself expressly allows any individual and even more so the authority to detain the accused and logically stop the criminal action. FIRST COLLEGIATE COURT ON CRIMINAL MATTERS
FIRST COLLEGE COURT ON CRIMINAL MATTERS OF THE SIXTH CIRCUIT
; 9a. Epoch; TCC; SJF and its Gazette; Volume XXV, January 2007; Page 2391
VIDEO RECORDING. YOUR OFFERING IN THE AMPARO TRIAL MUST BE SUBJECT TO THE RULES FOR THE EYE INSPECTION.
The reproduction of the images contained in a video constitutes an inspection because, for its relief, the sensory observation of someone or something is necessary, as well as the description that is made of what is observed in such video, therefore, to be in aptitude to relieve said means of proof, the provisions of article 151, second paragraph, of the Amparo Law that establishes the rules for visual inspection must be addressed. SECOND COLLEGE COURT ON CRIMINAL MATTERS
SECOND COLLEGE COURT IN CRIMINAL MATTERS OF THE FIRST CIRCUIT
; 9a. Epoch; TCC; SJF and its Gazette; Volume XVIII, December 2003; Page 1315
HEALTH, CRIME AGAINST, IN ITS MODALITY OF POSSESSION OF NARCOTICS AND PSYCHOTROPICS. CONCERNING THE PROVISION OF ARTICLE 195, FIRST PARAGRAPH, OF THE FEDERAL CRIMINAL CODE, IT MUST BE SPECIFIED TO WHICH OF THE CONDUCT REFERRED TO IN ARTICLE 194 OF THE MENTIONED CODE WAS INTENDED.
To integrate the criminal type of the crime provided for in article 195, first paragraph, of the Federal Criminal Code, it is necessary to specify the purpose that the asset was intended to achieve with the possession of the certified narcotic and clearly indicate what the conduct is, of which it refers Article 194, which was intended to be carried out by the crime agent. From the wording of article 195, first paragraph, of the Federal Criminal Code, it can be seen that the legislator established as an integrating element of the crime, that the conduct that the asset intends to carry out with the possession of the narcotic is specified, as it refers to conducts listed in article 194 of the code itself, which are fully identified, namely: to produce, transport, traffic, trade, supply, even free of charge, or prescribe the drug possessed by the asset;even provide financial resources or carry out publicity acts to finance or consume, respectively, narcotics. Therefore, the right of the accused to know in detail the specific fact for which he is being tried and, where appropriate, for which he is convicted, is enshrined as a guarantee in article 20, section A, Section III, of the Political Constitution of the United Mexican States, which establishes the right of every defendant in a criminal order process, that in a public hearing and within forty-eight hours following his consignment to justice, he Make known the name of your accuser and the nature and cause of the accusation, so that you know well the punishable act attributed to you and can answer the charge, rendering your preparatory statement in this act.The described guarantee was reiterated by the Senate of the Republic on December 18, nineteen hundred and eighty, upon adhering to the American Convention on Human Rights, which was published in the Official Gazette of the Federation on May seven, nineteen hundred and eighty-one., which in its article 8, point 2, paragraph b), says: «Article 8. Judicial guarantees. … 2. Every person accused of a crime has the right to be presumed innocent until her guilt is legally established. During the process, everyone has the right, with full equality, to the following minimum guarantees:… b) prior and detailed communication to the accused of the accusation made. "To the above, it is added that the obligation of the agent of the Public Ministry of the Federation to specify exactly the conduct that the asset intended to carry out with the narcotic it possessed, finds its basis in article 21 of the Constitution, and is clearly deduced from article 293 of the Federal Code of Criminal Procedures, by establishing that when formulating its conclusions "it must establish in specific propositions, the punishable acts attributed to the accused." Those that "must contain the constituent elements of the crime and those conducive to establishing responsibility." Therefore, when determining the legislator in article 195, first paragraph, of the Federal Penal Code,that if the purpose of the drug possessed by the asset was to carry out any of the behaviors detailed in article 194 of the punitive code itself, it established a specific penalty and also imposed as an element of the crime not only that the fact of said possession be proven of the narcotics, but also the purpose that the agent of the illicit decided to consciously carry out the behaviors that another criminal figure describes. Yes, the action of possessing the drug found is sanctioned by article 195, first paragraph, of the aforementioned federal punitive code, with a penalty of five to fifteen years in prison and for this the purpose pursued by the agent must be proven. On the other hand, the performance or updating of the behaviors described in the repeated article 194,they are sanctioned more seriously by contemplating a penalty of 10 to 25 years in prison. Therefore, to estimate the existence of this category of crime against health, as already indicated, the legislator imposed the test of the purpose pursued by the asset, which is, obviously, an element of the criminal type of the crime that is analyzes. However, the proof of this element cannot be achieved in an objective way, since the intention to achieve the behaviors already described constitutes the agent's intent, which is not something that can be appreciated in isolation in a material way, since by being immersed in The will is not something that can be directly and objectively noticed, but through intellectual operations that start from the analysis of facts that, although they are related to these behaviors, do not carry them out, then, if so,it would be in the presence of the illicit that specifically sanctions it. Under these conditions, of course, the legislator included as a presupposition of the existence of the crime the proof of the agent's responsibility, which implies the objective intervention in carrying out the action, as well as a subjectivity attributable to the criminal purpose. That is, it forced the prosecuting body to clearly specify the conduct that the asset intended to carry out with the narcotic drug that it possessed and the judges to examine together with the material elements, the fraud or intentionality of the agent, which always constitutes the subjective element and requires the demonstration of a nexus of attributability with the typical result produced, due to acts or omissions that appear as a necessary condition of that result,as well as that there is a certain functional control over the events in terms of the provisions of article 14) '> 13, in its various sections, of the Penal Code of federal application. This is so, because the events that cannot be proven directly, such as the subjective elements of the crime, require a reasoned effort to establish with material elements, even isolated, the fact to prove, as supported by the First Chamber of the Supreme Court of Justice of the Nation in the thesis of jurisprudence by contradiction number 23/97, published on page 223, Volume V, June 1997, of the Judicial Weekly of the Federation and its Gazette, Ninth Period, which says: «PROOF INDICIARY, HOW IT OPERATES, IN CRIMINAL MATTERS.- In criminal matters, the evidence concerns the world of fact,because it is an accredited fact that serves as a means of proof, no longer to prove, but to presume the existence of another unknown fact; that is, there are events that cannot be directly demonstrated through regular means of proof such as confession, testimony or inspection, but only through the effort of syllogistic reasoning, which starts from isolated data, which are linked together., in the mind, to reach a conclusion. ' Therefore, if the perpetrator of the crime provided for in article 195, first paragraph, of the criminal law, directs his action to carry out the conduct that violates another protected legal right, his objective is nothing other than the carrying out of a different crime, although without consummating it, then, in that case, two criminal types would be integrated. So that mere intention evidently involvesthe liability test. Thus, in the terms explained, fraud is an essential element or element of the existence of the crime against health that is examined, even with how unfair it may seem, because those who consider it only as an element of guilt, are obliged to break coherence of its system and to consider it an element of the unjust, even when the crime has not reached its consummation. Therefore, without departing from the finalist theory, which is what provokes this legislative treatment, a double nature of fraud must be recognized; that is, as an element of guilt and as a subjective element of the unjust. In these terms, the Collegiate Court of the Twenty-Third Circuit ruled, in the thesis published on page 350, Volume III, January 1996, Ninth Period of the Federal Judicial Weekly and its Gazette,that says: «HEALTH, CRIME AGAINST. THE PURPOSE OF THE POSSESSION OF NARCOTICS, CONSTITUTES AN ESSENTIAL ELEMENT OF THE PENAL TYPE PROVIDED BY ARTICLE 195 OF THE FEDERAL PENAL CODE.- According to the text of article 195 of the Federal Penal Code, the fact that the possession of the narcotic has as its purpose or purpose, the performance of any of the conducts described as a crime by article 194 of the Federal Penal Code, does constitute an essential element of the criminal type described by the aforementioned precept, because given the wording of said precept, when saying 'as long as', it conditions the imposition of the sanction provided in it, to the fact that possession is for the purpose of carrying out any of the conducts provided for in article 194. " The Collegiate Court itself established, as is done here,that the personal conditions of the active subject are a subjective element constitutive of the crime foreseen in article 195, first paragraph, of the Penal Code of federal application. That's right, the reference criterion is published on page 914, Ninth Period, Volume IX, June 1999, of the Federal Judicial Weekly and its Gazette, which says: «HEALTH, CRIME AGAINST. PROOF OF THE CONSTITUENT ELEMENTS OF THE CRIME PROVIDED FOR BY ARTICLE 195 OF THE FEDERAL PENAL CODE.- The first two elements of the offense provided for by article 195 of the Federal Penal Code, that is, possessing any of the narcotics indicated in article 193 of the Federal Penal Code, and that such possession is carried out without the corresponding authorization referred to in the General Health Law,They are objective in nature and are made up of facts external to the active subject, which, performed or omitted by the latter, are perceptible by the senses and demonstrable through direct evidence. On the other hand, the third of them, consisting of the purpose of possession, is subjective in nature, since it refers to the internal scope of the crime asset, falls on the willful intention pursued by it with the possession of the narcotic and in the majority of the cases, it is refractory to direct evidence and therefore, its verification can be made through inferences derived from the facts fully demonstrated in the record by other evidence, in accordance with the rules of circumstantial evidence provided for by article 286 of the Federal Code of Criminal Procedures, in relation to the last paragraph of article 168 of the ordinance itself. "In the terms outlined, the purpose of possession of the narcotic was established by the legislator in article 195, first paragraph, in relation to 194 of the Federal Criminal Code and, therefore, in compliance with article 168 of the Federal Code of Criminal Procedures, The prosecuting body must clearly establish the specific conduct that, in its concept, the asset intended with the narcotic that, as stated, it possessed, so that the judge is in a position to examine whether that purpose, as a subjective element, was credited in the judicial delay. The existence of the thesis of the Second Collegiate Court of the Fourteenth Circuit, whose heading is: «CRIME AGAINST HEALTH IN ITS MODALITY OF POSSESSION OF A NARCOTIC FOR THE PURPOSE OF COMMITTING VARIOUS ILLEGAL CONDUCT, is not neglected,PROVIDED FOR IN THE FIRST PARAGRAPH OF ARTICLE 195 OF THE FEDERAL PENAL CODE. IN ORDER NOT TO LEAVE THE GUILT IN A STATE OF INDEFENSION, IT IS ENOUGH TO CREDIT THE PURPOSE WITHOUT SPECIFYING THE CONDUCT. Nor is it neglected that it invokes the criteria of the First Chamber of the Supreme Court of Justice of the Nation, contained in the jurisprudence thesis by contradiction number 7/96, published on page 477, Volume III, March 1996, of the Judicial Weekly of the Federation and its Gazette, Ninth Epoch. However, this last criterion, far from supporting the sense of the former, corroborates the considerations expressed here. In effect, the First Chamber of the Highest Court of the nation, in the aforementioned jurisprudence, held, among other aspects, that the special purpose is an element of the crime provided for in article 195 of the Federal Criminal Code and,therefore, the judge must analyze it by means of a concatenated link of the objective elements, specifying: «POSSESSION OF NARCOTICS AND PSYCHOTROPICS IN CRIMES AGAINST HEALTH. ITS NECESSARY LINK WITH THE PURPOSE.-The criminal type provided for in article 195 of the Federal Criminal Code establishes a penalty for the possessor of any of the narcotic drugs and psychotropics indicated in regulation 193, but this provided that possession is for the purpose of perform any of the conducts provided for in article 194. For the accreditation of the subjective element, confession is undoubtedly an ideal means, although by itself it is not enough, since in most cases where it exists, it will have to be linked with others that are matched, with the verification of the rest of the typical elements of an objective nature. Result,Therefore, it is necessary to first demonstrate the objective elements of the criminal offense, such as: the existence of the drug, the type and quantity of it that the subject possessed (or transported), as well as circumstances of place, time, and chance; then it will be necessary to analyze the existence of the subjective elements, such as fraud and the special purpose, for which the confession of the accused that he actually possessed it and that he carried it with him to carry out any of the actions referred to in the Article 194, that is to say: trade, traffic, introduce, and so on. In such circumstances, the judge must make a concatenated link between the objective elements and the subjective aspect when deciding, and with all this determine the purpose of the agent regarding the destination of the drug,Therefore, the sole statement isolated from said circumstance without being linked to other means of proof is not sufficient. " Consequently, as the judge cannot disregard the facts that are the subject of the accusatory conclusions formulated by the Public Ministry of the Federation in accordance with article 21 of the Constitution, in order to carry out the examination of this subjective element, it necessarily requires that the prosecuting body specify the conduct that, In his view, the accused intended to carry out the drug he possessed. Furthermore, the precision in the conduct that the asset was intended to carry out with the drug that it possessed, it is important to comply with the guarantees of legality and legal security enshrined in articles 14 and 16 of the Political Constitution of the United Mexican States, otherwise So,you are not given the opportunity to properly learn of the specific conduct and nature of the accusation, which is why the process was instructed. FIRST COLLEGIATE COURT ON CRIMINAL MATTERS
FIRST COLLEGIATE COURT ON CRIMINAL MATTERS OF THE THIRD CIRCUIT
; 9a. Epoch; TCC; SJF and its Gazette; Volume XVIII, September 2003; Page 1353
CARTRIDGES FOR WEAPONS FOR THE EXCLUSIVE USE OF THE ARMY, ARMED AND AIR FORCE. ITS CLANDESTINE INTRODUCTION TO THE NATIONAL TERRITORY CONSIDERED AS TYPICAL CONDUCT IN ARTICLE 84, SECTION I, OF THE RELATIVE FEDERAL LAW, DOES NOT VIOLATE THE GUARANTEE OF EXACT APPLICATION OF THE CRIMINAL LAW CONTAINED IN ARTICLE 14 OF THE CONSTITUTION.
The Full Court of the Supreme Court of Justice of the Nation when interpreting the third paragraph of article 14 of the Political Constitution of the United Mexican States established that the guarantee of exact application of the law in criminal matters is not limited to mere acts of application, but also includes the law itself, which must be drafted in such a way that the terms used to specify the respective elements are clear, precise and exact. In accordance with such criteria, the clandestine introduction of cartridges or ammunition that are not for the exclusive use of the Army, Navy and Air Force contemplated as typical conduct in article 84, section I, of the Federal Law on Firearms and Explosives it does not contravene the constitutional guarantee of reference. Indeed,The phrase "subject to control" that establishes said provision is not isolated, since when contemplating the disjunctive conjunction "or" it establishes two alternative hypotheses for the conduct to be punishable, consisting of the fact of entering the national territory clandestinely: A) weapons, ammunition, cartridges, explosives and materials for the exclusive use of the Army, Navy and Air Force «or» B) weapons, ammunition, cartridges, explosives and materials subject to control in accordance with this law, because the phrase “subject to control »According to the semantics, it refers to the accumulation of weapons, ammunition, cartridges, explosives and materials with respect to which it is regulated and supervised in the same, and that of course are not for the exclusive use of the Army, Navy and Air Force,because the opposite is established in the first hypothesis separated by the disjunctive conjunction "or". Thus, all those objects that are regulated in articles 9, 10, 10 bis, 50, 58 and 59 of the law itself, in which there are, among others, the 22 caliber cartridges, which to legally introduce them to the By importation, the country requires extraordinary permission to remove them from the fiscal area, in accordance with the various article 58 of the aforementioned legislation, they are subject to control in terms of the Federal Law on Firearms and Explosives; Consequently, in the aforementioned article 84, section I, of the relative federal law, the description of the conduct or criminal type is also formulated for cartridges or ammunition that are not for the exclusive use of the national military forces,with elements that distinguish it from the various hypotheses referring to those that are, by indicating that they are subject to verification, supervision and inspection, that is, to control and regularization by the law itself, the sanction of which is equal for both.
THIRD COLLEGIATE COURT OF THE FIFTH CIRCUIT TA]; 5th. Epoch; Full; SJF; Volume LVIII; Page 2067
VIOLATION, CHECK OF THE CRIME BODY OF.
In order to prove physical violence in the crime of rape, there must be the evidence of judicial inspection and the corresponding medical examination, regarding whether the victim had traces of violence on her body, especially on her genital organs; and if there is no such evidence and there is only the saying of the offended and hearsay witnesses, who learned of the fact through the aforementioned offended, and a deficient expert opinion, because it refers to an event that occurred years before, there is no a perfect presumptive evidence that proves the real existence of the crime of rape; and being the basis of all proceedings in criminal matters, the verification of a fact cataloged by the respective law, as criminal, protection must be granted against the sentence of second instance that imposes a penalty for said crime, for having been violated,to the detriment of the complainant, article 14 of the Constitution.
FULL
X. Conclusion
It is concluded that judicial inspection or also called judicial recognition, is regulated by certain procedures or requirements for its practice, and also must be combined with other means of evidence to correlate the facts of the crime, and have greater legal validity, the inspection is properly the means of evidence, in which the presence of the judge, secretary and, where appropriate, the actuary is required, so that according to their senses, they may investigate, inspect, and verify to their knowledge that they understand the problem from which the criminal acts arose, following certain approaches to its relief in order to obtain the event that occurred in a criminal way, a means that will be administered with other means of proof to demonstrate its legal saying, and that can in turn vent with an expert, accompanied to expose their knowledge,this being alien to the inspection since the determination and value that it gives is the judge's own.
XI. Bibliography
- ORAL TRIALS IN CRIMINAL MATTERS. CAR. EDUARDO LÓPEZ DE BETANCOURT, COLLECTION OF LEGAL TEXTS EDITORIAL IURE.ED. PORRUA, CIVIL PROCEDURAL LAW, AUTHOR JIMÉNEZ DE AZUA. PROCESS, EVIDENCE AND STANDARD, (PHILOSOPHY AND THEORY OF LAW,) ARA EDITORES.,., EDITOR SANTIAGO ORTEGA GOMERO. 2013 OF THE SUPREME COURT OF JUSTICE CD -ROM.
