In today’s article in Law In Cabo we will talk about the “Extinction of Ownership Action: Can my house be taken away from me if a crime is committed in it?”, which although it is “not a criminal matter”, being an autonomous proceeding of civil nature, it is irremediably derived from a criminal proceeding, therefore, I will approach it from a simple perspective.
First of all, it is necessary to specify that “extinction of ownership” is understood as the loss of the rights that a person has in relation to an asset, by means of a judgment. That is to say, the loss of an asset due to the fact that it is the product, object or instrument of a crime.
As an example, I will use as an example when an event is committed that the law indicates as a crime or with the appearance of such, within a property, which is secured, with the purpose that the ministerial authority carries out diverse diligences in the same, with the purpose of obtaining diverse elements that serve as evidentiary means that allow it to clarify the criminal event.
Once the ministerial authority has concluded such investigation in the property, two situations could occur with respect to the destination of the property:
That the return of the property is ordered to whoever accredits having rights over it; or,
That the Prosecutor initiates the “Extinction of Ownership Action” with respect to the property.
But what will it depend on if the property is delivered to me or if the Extinction of Ownership Action is initiated?
In order to answer this question, we must refer to the content of the penultimate paragraph of article 22 of the Federal Constitution, as well as to article 1 of the National Law of Extinction of Ownership, articles that are harmonious with each other when establishing the catalog of crimes for which this “action of extinction of ownership” is applicable, which are the following:
- Acts of corruption;
- Crimes committed by public servants;
- Organized crime;
- Vehicle theft;
- Illicit resources;
- Crimes against health;
- Trafficking in persons; and,
- Crimes committed in the area of hydrocarbons, petroleum products and petrochemicals.
Only for the commission of any of the crimes described above may an action for forfeiture of ownership be brought with respect to an asset, that is to say, “such action may not be brought for a different crime” – unless it is related to any of the unlawful conducts described above.
Likewise, it is necessary to specify that the action of extinction of ownership will proceed on those assets of patrimonial nature whose lawful origin cannot be accredited, in particular, assets that are an instrument, object or product of the unlawful acts, without prejudice of the place of their realization, such as:
- Assets that come from the transformation or conversion, partial or total, physical or legal, of the product, instruments or material object of unlawful acts referred to in the fourth paragraph of Article 22 of the Constitution;
- Property of lawful origin used to conceal other Property of unlawful origin, or materially or legally mixed with Property of unlawful origin;
- Property for which the owner of the property does not prove its lawful origin;
- Goods of lawful origin whose value is equivalent to any of the Goods described in the previous sections, when it is not possible to locate, identify, seize, secure or materially apprehend them; ( SECTION DECLARED AS INVALID BY THE PLENARY SESSION OF THE SCJN IN SESSION OF JUNE 17, 2021).
- Property used for the commission of unlawful acts by a third party, if its owner had knowledge of it and did not notify the authority by any means or did not do anything to prevent it; and, (NORMATIVE PORTION DECLARED AS INVALID BY THE PLENARY SESSION OF THE SCJN IN SESSION OF JUNE 17, 2021).
- Assets that constitute income, rents, products, yields, fruits, fruits, accessories, profits and other benefits derived from the Assets referred to in the preceding fractions.
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