In Mexico, family relationships are regulated by local legislation and treated by local tribunals because it is a federal and democratic republic divided in 31 states with autonomous administration. Mexico’s government has three branches: executive, legislative and judiciary in two different levels: federal and local; in other words, some issues are treated and resolved by federal authorities and the rest are under local jurisdiction such as family issues. Therefore, each State has its rules and procedures to regulate family relationships and its own tribunals in order to resolve possible controversies, such as divorce, child support, etc. Legal provisions regarding family matters are found in the Civil Code for each State; and rules to start a appropriate action related to family issues are found in the Civil Procedures Code of each jurisdiction.
Other sources of remedies in the Mexican constitutional system are found in the amendment made in 2002 to article 113, second paragraph that reads as follows:
Any harmful action against a private individual’s wealth or rights, derived from the State’s illegal administrative performance shall be challenged in an objective and direct way in court. The affected individuals shall be entitled to compensation under law.
Before the enactment of this provision, the ability to seek damages from the Mexican State as result of illegal performance was very limited, because as we saw above, the main goal of the Amparo trial is to restore the rights and immunities violated by unconstitutional laws or unlawful actions. Second paragraph of article 113 has its own statutory regulation, the purpose of which is to set out “bases and procedures in order to recognize the right of compensation to those that without legal obligation have suffered damages in their assets or rights as a result of the irregular administrative activity of the State (government)”. This provision is for those individual affected by wrongdoings made by federal public entities.
The spirit of this legislation is to ensure that Mexican domestic law is in accordance with the international agreement and covenant on the protection of human rights. A clear example is the explicit reference to the applicability of this provision to comply with decisions made by the Inter-American Human Rights Court and recommendations made by the Inter-American Human Rights Commission.
The goal of the compensation is to repair all damages, including both personal and moral damages, of an amount that cannot exceed 20,000 times the amount of the minimum wage in Mexico City. The right to receive proper remedy by the Mexican Federal Government has to be exercised by affected ex-parte before an Administrative Federal Tribunal.
Another special feature of this constitutional procedure is that harmful actions can be suspended by judicial resolution before the trial is over. The suspension shall be resolved by taking into account the alleged violation’s nature, the feasibility of compensation and the harmful effects, which can be generated against others or against the public interest by granting the suspension. Such suspensions shall be ruled on resolutions of criminal trials once the special protective trial’s lawsuit has been summated and on resolution of civil trials, once a plaintiff’s security deposit has been made in order to repair any eventual harmful effects derived from the suspension. Such deposit shall be released only by an equivalent one made by the contesting party and which is intended to repair all harmful effects once the protective trial is resolved in the plaintiff’s favour. This provision is in some way similar to injunctions in the Canadian tradition. The idea of which is to stop possible illegal actions in order to preserve the rights and freedoms of the plaintiff.
According to Article 107, fraction XVI of the Mexican Constitution, once the special protection has been granted any repetition of the harmful action by the accused authority or any attempt by such authority directed to elude the resolution issued by the federal court, shall be punished by immediately removing such an authority and with the authority’s prosecution and trial before a federal judge’s jurisdiction as long the Supreme Court of Justice considers the authority’s disobedience as an unjustified one. However, the Supreme Court shall grant to the authority who has defied a federal resolution in a justified way a reasonable period of time in order to comply with such a resolution. In this case, if the authority fails again to comply with the resolution, the Supreme Court shall proceed against him or her. Also, in some cases the Supreme Court can order compensations to be paid in order to comply with those federal resolutions that can be detrimental for society or which can economically affect individuals outside the controversy, which outweighs the economic benefits granted to the plaintiff by a favourable resolution. Likewise, the protected plaintiff has the right to request compensation from the authorized agency as long as the nature of the contested action allows for such a request to be made.
