In this occasion, in Law In Cabo we will talk about amparo. What is amparo? The amparo is a means of defense available to all persons and can be filed by the individual or legal entity that is affected by the law or act. The plaintiff may do so by himself, by his legal representative or by his attorney-in-fact, or by any person and through his defense counsel or any other person. When the challenged act derives from a criminal proceeding, he may file it through his defense counsel or any other person in those cases in which the Law allows it. The current Amparo Law is a regulation of Articles 103 and 107 of the Political Constitution of the United Mexican States published in the Official Gazette of the Federation on April 2, 2013.
Actually, this figure is not new since it was included for the first time in the federal constitution since 1857 and the work was carried out by Manuel Crescencio García Rejón y Alcalá, known as Manuel Crescencio Rejón, and Mariano Otero y Mestas, known as Mariano Otero were the pioneers.
In the case of a minor, a disabled person or an adult subject to interdiction (restriction of legal capacity generally applicable to persons with disabilities), he/she may request protection by him/herself or by any person on his/her behalf without the intervention of his/her legitimate representative when he/she is absent, is unknown, is impeded or refuses to promote it. The jurisdictional organ, without prejudice to the issuance of urgent measures, will appoint a special representative to intervene in the trial, preferably a close relative, except when there is a conflict of interest or reason that justifies the appointment of a different person.
The purpose of the amparo trial is to resolve any controversy arising from general rules, acts or omissions of authority that violate recognized human rights and the guarantees granted for their protection by the Political Constitution of the United Mexican States, as well as by the International Treaties to which the Mexican State is a party, by general rules, acts or omissions of the federal authority that violate or restrict the sovereignty of the States or the sphere of competencies of Mexico City, and provided that the recognized human rights and the guarantees granted for their protection by the Mexican Constitution are violated, and by general norms, acts or omissions of the authorities of the States or of Mexico City, which invade the sphere of competence of the federal authority, provided that the recognized human rights and the guarantees granted by the Federal Constitution are violated.
Before resorting to amparo, the ordinary means of legal defense must be exhausted (appeals, revocation, review, inconformity and complaint, among others). Such means of legal defense must be exhausted in order not to violate the principle of definitiveness and thus avoid dismissal, but there are exceptions to the rule. Example: in an arrest warrant, articles 14 and 16 of the federal constitution are violated (the right of guarantee is not respected and the act is not founded and motivated).
The opposite case happens in administrative matters when the act executed by the authority violates articles 14 and 16 and/or is not well founded and motivated, an indirect amparo is filed and proceeds because the constitutional articles are violated, and when the administrative authority generates an act against someone and the ordinary legal remedies are not exhausted, and it is possible to go before the Administrative Court to file an amparo proceeding.
Nullity and but the principle of definitiveness was not exhausted because the law itself is optional. The indirect amparo is also applicable when the act of the authority demands more requirements than the law of amparo itself, then human rights are violated and the amparo is filed with the purpose of requesting the provisional suspension of the act executed by the authority so that the act is suspended until the indirect amparo is resolved so that it does not continue to cause aggravations, or the definitive suspension or flat suspension.
The amparo proceeding may be filed jointly by two or more plaintiffs when they suffer a common affectation of their rights or interests, even in the event that such affectation derives from different acts, if such acts cause them similar harm and come from the same authorities. And in the case of acts or resolutions coming from judicial, administrative, agrarian or labor courts, the complainant must allege being the holder of a subjective right that is personally and directly affected.
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