Mexico: The New Criminal Accusatory System in Mexico and its Effects in the IP

Last Updated: 9 June 2016
Article by Ana Albarrán

The next June 18th, finally expires the term stablished for entry into force, the new National Criminal Proceeding Code (NCPP), which is compulsory for all and in each one of the States of Mexico. This new ordinance abrogates the last Code of 1934 and brings a new and homogenized criminal accusatory proceeding system.

The need of having a single ordinance of criminal proceedings led to the development of this Code, which intends to harmonize the existing different criteria applicable in each one of the Mexican entities, in order to ground them into one only. This arises from the amendment made in our Supreme Law in 2008 and, consequently, this new ordinance was published in 2014 and has gradually been entering into force in the different Mexican States. It is ineluctable that we will have a new justice system shortly, which requires to be studied and in our case as Intellectual and Industrial Property (IIP) experts, from now on, it is essential to evaluate its effects on this area.

As it is known, the defense and compliance of the IIP rights may be carried out from three different approaches, criminal action, civil action and administrative action. Those mechanisms are different between them, since each one of them, seeks to protect the IIP from distinct angles and for different purposes. Hence, for obvious reasons, in this article, we are going to focus in the analysis of criminal actions, which per se treat behaviors which attempt against the rule of law considered as crimes. Now, in general, in the IIP area in the different applicable regulations, - namely, articles 223 and 223 BIS of the Industrial Property Law (industrial property crimes) and 424 to 429 of Federal Criminal Code (copyrights and neighbors crimes) -, there are crimes qualified as high crimes and crimes qualified as low crimes; as well as, there are crimes which are officially prosecutable (at the authority's initiative) and crimes which necessary require the complaint initiated by the victim and/or offended, notice that there is no relation between the first one and second one. This is why, the need of explaining some of the most essential points that comprise this new criminal proceeding in Mexico.

We cannot fail to mention the innovativeness of the new criminal system, consisting on the presence of a jurisdictional figure named "Control Judge", which is present since the beginning of the procedure (investigation), - without leaving out the figure of the District Prosecuting Attorney, which is in charge of coordinating Polices and Specialized Experts-; until the declaration of the trial opening. The involvement of the Control Judge is more observed in such specific cases with opportunity to be solved through an alternative of solution proceeding, as well as, in summary procedures. Also, another new contribution is, the compulsory change of jurisdictional authority from the investigation stage to the oral trial stage, this latter is carried out before a "Prosecution Court", which may be formed by one and until three judges.

We also consider important to mention the aim of legislators to give a greater and mandatory weight to alternative procedures for solving conflicts and, to the enforcement of penalties, in those specific cases stablished on the body of the new ordinance. The ways for alternative solution stablished are: a) remedy agreement and, b) conditional suspense of the proceeding. Likewise, it is regulated the summary proceeding. In mentioned cases, besides another requirements, it is necessary the consent of the involved parties, victim and/or offended and accused; as well as, to guarantee the damage indemnity. The main goal to give importance to these kind of alternative solutions is, taking only high impact crimes to next stage, the Oral Prosecution Trial.

Likewise, it seems that now, role of different figures who take part in criminal proceedings, is more clearly delimited; it is also said that there are more weight and duties for Polices and Specialized Experts. However, with the creation of a new ordinance, the day-to-day practice will open discussions and interpretations, which are essential to shape a legal proceeding system in a region; in light of it, we have to wait the arguments issued by jurists in reply to this new regulation. Besides, we would have to bring on the table the need of issuing a substantive Code as consequence of this adjective Code.

Finally, as conclusion, it is necessary to list the principles which define this new ordinance: 1) publicity; 2) discrepancy, 3) concentration, 4) continuity and, 5) involvement; these means that, hearings shall be open to the public; it shall be respected the argumentative battle between the parties; hearings shall be carried out in only one day or in consecutive days; process shall not be uninterrupted and, finally, jurisdictional authority shall be present during all the hearing. The foregoing, without forgetting the constitutional and fundamental principles, which must prevail in every criminal process, such as, presumption of innocence and previous judgment and due process.

Clarke, Modet & Co - MEXICO

Ciudad de México, D.F. Av. Insurgentes Sur 1647, Piso 15, Of. 1502, Col. San José Insurgentes, 03900
Tel: +52 55 5340 2300

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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