Unconstitutional, informal prison for tax fraud

By majority vote, the plenary session of the Supreme Court of Justice of the Nation (SCJN) declared unconstitutional and invalidated the informal preventive detention for tax fraud, as well as for the issuance, sale, transfer, purchase or acquisition of false tax receipts.

It is one of the most important reforms that Morena and the current federal government promoted to combat the so-called invoicing companies and, in his opinion, are part of criminal networks dedicated to systematic tax evasion.

The plenary session of the SCJN analyzed the constitutionality of the decree of November 8, 2019, which added and repealed provisions of the Federal Law against Organized Crime, of the National Security Law; as well as the National Code of Criminal Procedures, the Federal Prosecutor and the Federal Criminal Code. After that, in the same month of November and then in December 2019, the National Human Rights Commission (CNDH) and opposition senators filed, respectively, an action of unconstitutionality.

Minister José Fernando Franco González Salas presented a project on the actions of unconstitutionality promoted demanding the invalidity of said provisions. The project proposed to reject the arguments and declare the validity of all the precepts. However, in the in-depth study, a majority of ministers considered it excessive to classify tax crimes as a threat and an effect on national security.

By majority vote of the ministers Arturo Zaldívar; Jorge Mario Pardo Rebolledo; José Fernando Franco González Salas; Luis María Aguilar Morales; Alfredo Gutiérrez Ortiz Mena; Javier Laynez Potisek; Norma Lucía Piña and Alberto Pérez Dayán, the plenary session of the SCJN declared the invalidity of the reforms to the second paragraph of Article 187; and the third paragraph of article 256; and the addition of a seventh paragraph with sections I, II and III, to article 167; and a third paragraph to article 192 of the National Code of Criminal Procedures.


The ministers Yasmín Esquivel Mossa and Margarita Ríos Farjat (former head of the SAT in the current federal administration), who were proposed in office by President Andrés Manuel López Obrador, defended preventive detention for tax fraud and false billing. Together with Minister Franco González Salas, the ministers voted in favor of the project.

Esquivel Mossa considered that preventive detention was not all cases, “not in any case, not just any criminal; for example, when the false billing exceeds 8 million 695,470 pesos, when the crime of tax fraud exceeds this amount, but is also considered qualified ”, he argued.

However, Minister Norma Lucía Piña said that preventive detention in those cases “does apply automatically,” and the principle of the presumption of innocence is not addressed.

The minister president of the SCJN, Arturo Zaldívar, argued that informal preventive detention can only be when there is a risk of abduction of the person or can destroy evidence.

While Minister Alberto Pérez Dayán considered that the catalog of crimes that deserve preventive detention has already been established, so maintaining the contested norms, “could lead us more to configure a penal system that is aloof from the daily regularity to which society operates. making preventive detention basically a predetermined punishment ”.

Both Zaldívar and Pérez Dayán clarified that the judges will continue to be free to determine the informal preventive detention if they consider it necessary.

Celebrate opposition

The members of the parliamentary groups of the PAN, PRI, Movimiento Ciudadano (MC) and PRD in the Senate, which make up the self-proclaimed containment bloc, welcomed the decision of the SCJN to declare unconstitutional the application of informal preventive detention to those who commit the crimes of qualified tax fraud, smuggling and sale of false invoices.

“The SCJN agreed with us. Two years ago, in the Mexican Senate, we opposed Morena’s excesses and presented an unconstitutionality action, ”said MC leader Clemente Castañeda. (With information from Rolando Ramos)

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