Table of Contents
- Introduction
- 1.- Mandatory Receipts of Applications, Requests, etc.
- 2.- Nullity of Administrative Acts
- 3.- Reinforced Statutory Law Clarification
- 4.- Compensation for Revocation
- 5.- The Right to Receive An Express Answer to their Requests
- 6.- Not to Delay the Requests’ Answer (Ficta Refusal)
- 7.- Right That Administrative Silence Generates Rights (Ficta Affirmative)
- 8.- Formulate Requests Through the Mexican Postal Service
- 9.- To Present Evidence
- 10.- To Celebrate Conciliatory Agreements
- 11.- Certainty in Inspections and Verification Visits
- 12.- To Rebut the Inspection or Verification Acts
- 13.- To Challenge Adverse Administrative Resolutions
Introduction
Since 2019, administrative justice in Chihuahua has had important changes, although most of its inhabitants and foreigners have not realized it yet. The motive for such ignorance is due to the lack of information available about people’s rights before the local public administration and how they can benefit from them in their businesses. That is why this post is so relevant, and I will deal with it briefly about the topic (if you want a more profound analysis based on the law, check this entry that I prepared Administrative Justice in Chihuahua, Mexico)
The changes I am talking about originated in March 2019 when the Administrative Justice Law of the State of Chihuahua and the Organic Law of the State Court of Administrative Justice were issued by lawmakers, which gave the people of Chihuahua the possibility of defending their rights before the public administration in a more impartial, faster and, above all, safer way, specifically before an ordinary court with a specialization in Administrative Law.
An administrative court that even has the power to resolve the merits of a request made before the public administration if it has the elements—satisfying the legal requirements and the evidence that proves it—for this purpose, especially the technical ones. This power, as we may see, is important because it prevents individuals from being denied approval of their request just for not wanting to provide an economic benefit outside the law, even if they meet all the requirements. An issue that, unfortunately, is very common.
On the other hand, fortunately for the people of Chihuahua and foreigners, the new administrative justice was strengthened with the issuance in September 2021 of the Administrative Procedure Law of the State of Chihuahua, which generally regulates, among other things, how to submit requests to the public administration to obtain permits, licenses, authorizations, for educational, professional, health, real estate, construction, environmental and other issues related to the public administration.
All of the above changes are of utmost importance if we are aware that public administration is present in all areas of our lives—even for foreigners who want to reside in Chihuahua—from regularizing your education, profession, and immigration status to obtaining all types of licenses and permits to carry out certain activities, formalizing a business, authorizing works, importing and exporting merchandise, handling food, and countless other cases.
Therefore, given the importance and impact on people’s rights, the people of Chihuahua must be aware of how to deal with public administration and, instead of resorting to acquaintances or ‘processors’ to navigate the winding paths of public processing, know what to expect and, more importantly, what to expect. Without further ado, let’s start studying the new changes in administrative justice in Chihuahua, Mexico.
1.- Mandatory Receipts of Applications, Requests, etc.
Now, the administrative authorities in the state of Chihuahua are obliged to receive all types of requests as long as they are made in writing. The above, even when they are presumptively inadmissible by the agency. However, in order for the requests to be attended to by the authorities, the writing with which the request is formulated must comply with the following:
- Indicate the authority to whom you are addressing the request.
- The name or company name of the petitioner and, where applicable, the name of its legal representative.
- The domicile to receive notifications must be located within the state territory or the corresponding municipality. If no address is indicated to receive notifications, they must be carried out in the court’s lists, even personal ones.
- The request that is made.
- The description of the facts and reasons on which the request is supported.
- The evidence that, if applicable, the petitioner offers to make his case.
- The questionnaire for expert witnesses, in the event of offering expert evidence.
- The place, date in which the request is issued, and signature of the petitioner. If he does not know or cannot sign, his fingerprint shall be stamped on the request, or another person shall sign in his name in the presence of a notary public.
On the other hand, I would like to mention that these rules for formulating requests, although they apply to the majority of the agencies of the municipal and state public administration of the state of Chihuahua, it is also true that certain agencies have special rules to which The Law of Administrative Procedure of the State of Chihuahua does not apply to it, such as public security, taxes, the administrative liability of public servants, electoral, human rights and prosecutors.
2.- Nullity of Administrative Acts
When the issuance of an act by the administrative authority violates the people’s rights, they can challenge it and request its nullity—not correctable—or annulability—correctable—or, even the authorities themselves, when they notice defects in their acts, can annul them ex officio.
In any case, when benefits or rights are granted to an individual as a result of an administrative act (for example, an authorization, permit, etc.), even when the authority detects defects in the administrative procedure or in the act itself, it cannot annul it ex officio. By necessity, the authorities must undertake a Contentious Administrative Trial where the individual can defend the act’s legality.
3.- Reinforced Statutory Law Clarification
Chihuahua’s legislation allows the administrative authority to unilaterally and, almost always for reasons of public order, modify the conditions of some administrative act favorable to the individual, such as granting a pension, license, etc. However, it also obliges the authority to justify the existence of the supervening reason and the cause of public order to make a change based on the law. Finally, the authority must explain in detail the reason for its applicability for modifying the administrative act, which here is known as ‘Reinforced Statutory Law clarification’ (motivación reforzada)
4.- Compensation for Revocation
Even though the authority is empowered to revoke ex officio and for reasons of public order the administrative acts that engender rights or benefits to individuals, in the event that there is no other remedy and this is done, the authority must compensate them for the damages caused—economic losses.
5.- The Right to Receive An Express Answer to their Requests
When an administrative procedure has been initiated at the request of individuals, the authority must answer in writing according to the deadlines established for the matter from which the requests arise (for example, in environmental issues, human settlements, education, etc.) In no case may the authorities maintain administrative silence for more than three months reckoned from the date of receipt of the request.
6.- Not to Delay the Requests’ Answer (Ficta Refusal)
Once this period of three months has elapsed without the authority giving an express answer to the request, the figure called fictitious refusal shall operate, which practically indicates that the request was denied and shall let the petitioner with the possibility of filing an administrative lawsuit under the State Court of Administrative Justice.
7.- Right That Administrative Silence Generates Rights (Ficta Affirmative)
In some cases, the fictive affirmative operates, which is the complete opposite of the previous point. That is, the requested decision is favorable to the individual’s rights. In these cases, it strictly depends on the law from which the act emanates because it is an exception to the general rule.
When the fictitious affirmative operates, a written request must be made to the authority where the process begins to certify the favorable result of the individual. Once the request is made, within 3 business days, the original authority shall send the file to its hierarchical superior so that the certification can be made within the following 10 business days.
In the event that the hierarchical superior does not expressly rule on the certification, the interested person shall prove the existence of the fictitious affirmative resolution, which shall produce all its legal effects before the administrative authorities and individuals, with the original receipt of the requests.
8.- Formulate Requests Through the Mexican Postal Service
When a person lives at an address other than the place of residence of the administrative authority before which an administrative procedure is to be initiated, they may formulate their requests through the Mexican Postal Service, including the legal remedies they make with the review relief or the contentious administrative trial.
9.- To Present Evidence
Individuals have the right to offer and disclose all types of evidence, except confessional evidence for the authorities (declaration). Evidence that once admitted must be weighed within the following 15 business days.
The administrative attorney must assess the type of evidence that the individuals provide since some substantive requests require very technical expert evidence and inspections, while others simply require documents and reports.
10.- To Celebrate Conciliatory Agreements
As a new legal figure in our Chihuahuan Administrative Law, issues subject to litigation between the public administration and individuals can now be reconciled. Of course, everything shall depend on the interests at stake and whether the law from which the matter emanates allows it.
Individuals may enforce the agreements before the State Court of Administrative Justice in case of non-compliance.
11.- Certainty in Inspections and Verification Visits
Although the administrative authorities in Chihuahua can conduct inspection and verification visits to confirm compliance with state and municipal regulations, such as civil protection issues, health risks, etc. On the other hand, to comply with the law for such inspections and verification, these orders must satisfy the following:
I.- Be authorized by a written signed by the competent authority.
II.- The order must specify 1) the name of the person in respect of whom the visit is ordered; 2) the place or area to be inspected; 3) the purpose of the visit; 4) the scope it must have; 5) the legal bases of the order.
III.- That the person carrying out the inspection identifies himself, displaying a valid credential with a photograph issued by the competent authority that accredits him to perform the inspection or verification visit.
IV.- A detailed record of every inspection and verification visit should be drawn up in the presence of two witnesses, and a full copy should be left with the visited person.
V.- That the acts contain the following: 1. Name or company name of the person being visited; 2. Time, day, month, and year in which the procedure begins and ends; 3. Street and number, town or neighborhood, telephone or other available form of communication, municipality in which the place where the visit is carried out is located, and the postal code; 4. Number and date of the commission letter that motivated it; 5. Name and position of the person with whom the transaction was conducted; 6. Name and address of the people who served as witnesses; 7. Data relating to the performance; 8. Declaration of the person who knows about the procedure in question, if they wish to do so, and 9. Name and signature of those who participated in the procedure, including those who carried it out.
12.- To Rebut the Inspection or Verification Acts
If, on the occasion of an inspection and verification visit, when the individual detects that incorrect data was recorded within the act that was carried out in the same procedure, he may make observations and offer evidence that is not within his reach about them or, make use of that same right but in writing, within a period of 5days from the date of preparation of the inspection or verification report.
Once the evidence offered by the individual has been resolved, the authority shall issue the final administrative resolution within the next 10 business days, where it may impose, among other things, the corresponding fines and specify the responsibility incurred by the individual.
13.- To Challenge Adverse Administrative Resolutions
Individuals who are affected by an administrative procedure where sanctions or security measures have been imposed (for example, temporary, total, or partial closures, suspension of works, etc.) may, at their choice, challenge the administrative acts through the revision relief contemplated in the Law of Administrative Procedure of the State of Chihuahua and resolved by the hierarchical superior of the issuing authority of the contested act; or file a Contentious Administrative Trial that the State Court of Administrative Justice must resolve.
It should be noted that in both legal remedies, there are 30 business days from the issuance of the challenged administrative act to file the relief, recommending to always go to the State Court of Administrative Justice since rarely the hierarchical superior of the authority who issued the act, being both a formal and material part of the public administration, shall revoke the acts of its subordinates.
Finally, among the resolutions or acts that can be challenged with the Contentious Administrative Trial before the State Court of Administrative Justice are also the following:
I.- Decrees and agreements of a general nature, other than regulations, when they are self-enforcing and are challenged in their first act of application.
II.- Resolutions issued by tax authorities that determine the existence of a tax liability, establish a liquid amount, or provide the bases for its liquidation.
III.- Resolutions that deny the return of unduly received income or whose return is appropriate by tax laws.
IV.- Resolutions that impose fines for violation of administrative regulations.
V.- Resolutions that cause a tax loss other than those referred above.
VI.- The resolutions issued regarding civil pensions of the State and municipalities.
VII.- Resolutions arising from decisions in public tenders and the interpretation and compliance of public contracts, public works contracts, acquisitions, leases, and services entered into by the agencies and entities of the Centralized State and Municipal Public Administration and Parastatal.
VIII.- Resolutions that deny compensation for the State’s financial liability, declare its claim inadmissible, or, when having granted it, do not satisfy the claiming party.
IX.- The right of repetition of the State to collect the compensation they have had to pay individuals for their actions from public servants.
X.- Resolutions that require the payment of guarantees in favor of the State or municipalities and their parastatal entities, except for those that fall under the jurisdiction of the Insurance and Bonding Institutions Law.
XI.- The resolutions issued by the administrative authorities that end an administrative procedure, an instance, or resolve a file.
XII.- Resolutions that resolve administrative ordinary remedies contested before the same public administration.
XIII.- The resolutions that are configured by fictitious refusal in the matters by the expiration of the period established by the laws of each matter or, failing that, within three months, as well as those that deny the issuance of the certificate of having configured the fictitious positive resolution, when it is provided for by the law that governs said matters.
XIV.- Resolutions that decide the legal remedy provided for in the General Law of Administrative Responsibilities regarding public servants.
XV.- Resolutions favorable to individuals, when they are considered contrary to the law, the authority itself can challenge them, seeking to annul the administrative act (this has as statutes of limitations 5 years)
XVI.- Against the resolution derived from an administrative legal remedy where it is deemed not to have been filed timely or is dismissed as inadmissible.
XVII.- Against administrative resolutions derived from administrative legal remedies where the individual’s claim is partially granted on those issues that continue to affect them.
By Omar Gómez
Partner
Mexican tax and administrative attorney
Belegal abogados S.C
Abogados en Ciudad Juárez, Chihuahua, México
Contact me at [email protected]
Visit my personal website at www.ogomezabogado.com
Contact the firm: [email protected] or call (656) 774-75-73 for English assistance or (656) 271-41-43 for Spanish assistance.