While it’s true that for centuries the responsibility of individuals for damages caused to others through civil liability and, with it, the right to be compensated has been recognized, it is also true that until recently, those same individuals asked themselves whether the State or its authorities could also have patrimonial responsibility. Above all, under the context of the fundamental right to good public administration, that has had its greatest development through judicial precedents. See as an example: GOOD PUBLIC ADMINISTRATION. IT CONSTITUTES A FUNDAMENTAL RIGHT OF THE PEOPLE AND A PRINCIPLE OF ACTION FOR THE PUBLIC AUTHORITIES.

It’s here where the patrimonial responsibility of the State arises to settle the question since it is absurd that the State could be sued for civil liability if public power is not exercised as a private entity. Hence, countries and states issued special legislation to claim liability arising from irregular administration by the State, as set out in Article 1813 of the Civil Code of the State of Chihuahua.

In the case of the state of Chihuahua, the legislation that regulates the state’s patrimonial liability is the Law of Patrimonial Responsibility of the State of Chihuahua. This law will guide the preparation of this entry. Without further delay, let’s begin.

Lists of Contents

• 1) Application, Scope, and Deadline For the Claim
• A) Concept of Irregular Administrative Activity
• B) Minimum Amount of Admissibility
• C) Statutes of Limitations
• 2) Implausible Claims and Their Consequences
• 3) Obligation to Compensate
• A) Exceptions to the Obligation to Compensate
• 4) Special Budgetary Item
• A) Budget Cap
• B) Authorization For the Transfer of Resources
• C) Annual Budget Adjustment
• D) Multi-Budget Payment of Compensation
• 5) Compensation and Its Characteristics
• A) Compensation Modalities
• B) Amount of Compensation in Case of Death
• C) Date For Calculating Compensation
• D) Calculation of Compensation’s Interest
• E) Compensation agreements
• F) Registry of Compensation
• 6) Procedure
• A) Lack of Jurisdiction of the Claim and Return
• B) Content of the Claim
• C) Answer to the Claim
• D) Evidentiary Period
• E) Term For Issuing the Resolution
• F) Content of the Resolution
• G) Criteria For Determining Patrimonial Responsibility
• H) Burden of Proof
• I) Challenge
• 7) Concurrence of Responsibility
• A) Compensation Reduction
• B) Joint Patrimonial Responsibility
• C) Responsibility in the Case of an Administrative Concession
• D) Mandatory Judicial Resolution

Translation

This entry is a translation of Responsabilidad patrimonial del Estado de Chihuahua.

1) Application, Scope, and Deadline For the Claim

Patrimonial liability for the state of Chihuahua and its law are institutions of public and general interest. Their purpose is to establish the bases, limits, and procedures to recognize the right to compensation to those who, without legal obligation to bear it, suffer damages in any of their assets and rights due to the irregular administrative activity of the state of Chihuahua or its municipalities.

A) Concept of Irregular Administrative Activity

For the purposes of this matter, the irregular administrative activity shall be understood as that which causes damage to the assets and rights of individuals who do not have the legal obligation to bear it due to the lack of legal basis or legal cause of justification to legitimize the damage in question.

B) Minimum Amount of Admissibility

For a claim for compensation for patrimonial liability of the State to proceed, the claim must be greater than 25 times the daily value of the Unit of Measurement and Update.

C) Statutes of Limitations

The right to claim compensation arising from the State’s patrimonial liability expires in 1 year. The compensation shall be calculated from the day after the patrimonial damage occurred or from the moment when its harmful effects ceased if they were continuous.

However, when people suffer physical or psychological damage, the statute of limitations period begins to count from the date on which the patient is discharged or the extent of the consequences of the injuries inflicted is determined.

Finally, if the individual has obtained the annulment of administrative acts, the statute of limitations period to claim compensation shall be calculated from the day after the date of the issuance of the administrative resolution or the final judgment, depending on the chosen route.

2) Implausible Claims and Their Consequences

Anyone who files a claim that is clearly unfounded or declared unfounded because it was filed without reason shall be fined 20 to 120 times the daily value of the Unit of Measurement and Update. The agency or entity to which the claim was filed shall impose the fine without any procedure.

On the other hand, agencies or entities shall be obliged to report to the Public Prosecutor’s Office any person who directly or indirectly participates, assists, or simulates the production of damages with the purpose of unduly proving the State’s patrimonial responsibility or obtaining any of the compensation referred to in this topic.

3) Obligation to Compensate

For compensation for the patrimonial responsibility of the State in the state of Chihuahua, the damages or losses, personal or material, that constitute the claimed patrimonial injury must be:

I.- Real.

II.- Susceptible to monetary assessment.

III.- Directly related to one or more persons.

IV.- Unequal to those that could affect the general population.

A) Exceptions to the Obligation to Compensate

The following are excepted from the obligation to compensate:

I.- Caused by force majeure.

II.- Not a consequence of the state’s and its municipalities’ activity.

III.- Derived from events or circumstances that could not have been foreseen or avoided, according to the current knowledge of science or technology at the time of their occurrence.

IV.- In those cases in which the applicant for compensation is the sole cause of the damage.

4) Special Budgetary Item

The State of Chihuahua’s and its municipalities’ expenditure budgets shall include the amount of items that, in terms of the State of Chihuahua’s Expenditure, Accounting, and Public Expenditure Budget Law, must be allocated to cover patrimonial liabilities.

However, compensation payments derived from patrimonial liability shall be made according to the budget availability of the corresponding fiscal year without affecting the fulfillment of the objectives of the programs approved in the State Expenditure Budget.

A) Budget Cap

The total sum of the resources included in the respective approved budgets of the state public entities may not exceed the equivalent of 0.3 per thousand of the total amount of the State Expenditure Budget for the corresponding fiscal year.

B) Authorization For the Transfer of Resources

The governor, through the Treasury Department of the State of Chihuahua and pursuant to the Law on the Budget of Expenditures, Accounting and Public Expenditure of the State, must authorize the transfer of the approved budget amounts to the different dependencies or entities of the state public administration for patrimonial responsibility, when due to the nature of their administrative activity it’s pertinent and justified before the competent authorities. The municipalities may do the same within the scope of their competence.

C) Annual Budget Adjustment

The absolute amount set for the concept of patrimonial responsibility must be adjusted annually in a proportion equal to the average increase recorded in said budgets unless there is a justified proposal for a budget modification different from the general rule previously provided.

D) Multi-Budget Payment of Compensation

The compensation set by the administrative authorities, the Legislative Branch, or the jurisdictional authority that exceeds the maximum amount budgeted in a given fiscal year shall be covered in the following fiscal years without prejudice to the payment of late payment interest that, as financial compensation, is calculated under the Patrimonial Responsibility Law of the State of Chihuahua and the Fiscal Code of the State of Chihuahua.

5) Compensation and Its Characteristics

As a general rule, compensation must be paid in national currency following the modalities established in the Patrimonial Responsibility Law of the State of Chihuahua.

A) Compensation Modalities

Compensation in matters of administrative responsibility shall be set according to the following modalities which are established as follows:

I.- For those who demonstrate that they have a monthly income of 5 or less minimum wages in force in the capital of the state of Chihuahua and who meet the requirements provided for in the Patrimonial Responsibility Law of the State of Chihuahua, total compensation shall be due, consisting of payment of the consequential damage, injury, and compensation for personal and material damage.

II.- For those who do not fall into the previous situation, equitable compensation shall be due, consisting of payment of the consequential damage and compensation for personal and material damage.

III.- In cases where the administrative authority or the jurisdictional authority determines, with the elements that they have had in view in the respective procedures, that the performance of the departments or entities causing the patrimonial damage has been irregular, according to the average standards of operation of the administrative activity in question or, if the performance of the public servant is manifestly deficient or illegal, the compensation must correspond to a comprehensive reparation, regardless of the economic income of the claimant.

B) Amount of Compensation in Case of Death

The amounts of compensation in the case of personal injury or death shall be calculated as follows:

I.- Claimants whose monthly income is up to 5 minimum wages in force in the capital of the state of Chihuahua raised to the monthly level shall be entitled to compensation equivalent to 8 times that established by the relevant provisions of the Federal Labor Law for work-related risks.

II.- Those who do not fall into the above hypothesis shall be entitled to compensation equivalent to 6 times the amount established by the relevant provisions of the Federal Labor Law for occupational hazards.

III.- In addition to the compensation provided in the previous paragraphs, the claimant or beneficiary shall have the right to have verifiable medical expenses covered pursuant to the Federal Labor Law itself concerning occupational hazards.

However, medical expenses shall be considered only in cases where the claimant is not entitled to care from state or federal social security institutions.

IV.- Payment of the total salary or verifiable income that the affected person fails to receive while the inability to work continues shall be considered only in cases where state or federal social security institutions do not cover them.

In cases where the affected party does not receive a salary or where it is not possible to quantify the salary received, the affected party shall have the right to be considered up to 3 times the daily value of the Unit of Measurement and Update.

C) Date For Calculating Compensation

The quantification of compensation shall be calculated according to the date on which the damages occurred or the date on which they have ceased when they are continuous, without prejudice to the updating of the values ​​at the time of their effective payment under the provisions of the Tax Code of the State of Chihuahua.

D) Calculation of Compensation’s Interest

The interest for delay established by the Tax Code of the State of Chihuahua in matters of late return of undue payments must be added to the compensation, and the term for its calculation shall begin to count:

I.- 30 days after the administrative or jurisdictional resolution that definitively ends the claim procedure becomes final for those with the right to total compensation.

II.- 60 days after the administrative or jurisdictional resolution that definitively ends the claim procedure becomes final for those with the right to the equitable compensation I referred to in numeral 2, subsection B) of this section.

E) Compensation agreements

The claimants of the affected state patrimonial liability may agree with the agencies, departments, and entities in order to:

I.- Agree on the payment of compensation in kind or installments when it does not affect the public interest.

II.- Conclude the controversy by setting and paying the compensation that the parties agree upon.

F) Registry of Compensation

The departments or entities responsible for the state patrimonial liability must register the final resolutions or sentences.

To this end, said authorities must keep a registry of compensation for patrimonial liability available for public consultation so that, following the established order, the patrimonial injuries are compensated according to their date of issue.

6) Procedure

As a guiding principle of the claim for patrimonial responsibility in the state of Chihuahua, we have to ensure that it is always initiated at the request of the interested party so it cannot be processed ex officio. Based on the above, the claim must be submitted to the authority presumably responsible for the damages or losses attributed.

A) Lack of Jurisdiction of the Claim and Return

If for any reason claims for compensation for patrimonial responsibility are submitted to any authority or institution other than the competent one, they must be forwarded within 48 hours of receipt to the entities presumably related to the production of the damages claimed.

B) Content of the Claim

The compensation claim must be submitted in writing and must contain at least the following:

I.- The entity or organization to which it is submitted.

II.- The name, denomination, or company name of the claimant and, where applicable, of the legal representative, attaching the documents that prove the legal status and the designation of the person or persons authorized to receive notifications and documents.

III.- The domicile to receive notifications.

IV.- The request that is made, adding an estimated calculation of the damage caused.

V.- The chronological, clear and succinct description of the facts and reasons on which the request is based.

VI.- The causal relationship between the damage caused and the irregular administrative activity of the entity.

VII.- The evidence, when necessary, to prove the argued facts and the nature of the act that requires it.

VIII.- Name and domicile of third parties if they exist.

IX.- The place, date, and signature of the claimant or, where appropriate, that of his legal representative.

I.- Must answer the claim.

II.- Allege what is convenient to his right.

III.- Offer the evidence to prove his defenses.

D) Evidentiary Period

Once the claim has been answered and, where appropriate, evidence has been offered, a probationary period of no more than 10 business days shall be opened, during which the evidence offered shall be presented.

E) Term For Issuing the Resolution

Once the evidentiary period has concluded, the authority in charge of the case shall be obliged to study the matter and issue a duly founded and motivated written resolution within a period not to exceed 10 business days.

F) Content of the Resolution

Resolutions issued in connection with claims for patrimonial responsibility by the State must contain the following:

I.- The authority issuing them.

II.- The place and date of the issuance.

III.- The mention of the elements relating to the existence or not of the causal relationship between the operation of the public service or administrative activity and the injury caused.

IV.- The assessment of the damage caused and the amount in money or kind of compensation, explaining the criteria used for the quantification, if applicable.

V.- The assessment of the relevant evidence.

VI.- The scope and effects of the resolution, establishing with precision, where appropriate, the bodies obliged to comply with it and the term within which the condemned party must comply.

VII.- Its legal grounds expressed as briefly as possible.

VIII.- The signature of the authority that pronounces them.

IX.- The authorization of the secretary before whom the action is taken or whoever acts in his place.

G) Criteria For Determining Patrimonial Responsibility

The patrimonial responsibility resulting from administrative activity must be proven before the competent authorities, considering the following criteria:

I.- In cases where the cause or causes producing the damage are clearly identifiable, the cause-effect relationship between patrimonial responsibility and the administrative action attributable to the State must be fully proven.

II.- Failing that, the sole causality or concurrence of causal facts and conditions, as well as the participation of other agents in generating the claimed damage, must be proven through the precise identification of the facts relevant to producing the final result.

H) Burden of Proof

As a general rule, the claimant who considers his assets harmed must prove patrimonial responsibility since he has no legal obligation to bear it. Therefore, affirming and waiting for the authority or public body to refute the statement is insufficient.

In any case, the state of Chihuahua, its municipalities, and other entities shall be responsible for proving the participation of third parties or the claimant himself in the production of the damages and losses incurred to him and without prejudice to the fact that, in the case that the injury or damages derive from omissions attributable to the authority itself, the burden of proof shall correspond to the latter.

I) Challenge

Against the unfavorable resolution to the claim for compensation for the state’s patrimonial responsibility, the Contentious Administrative Trial before the State Court of Administrative Justice I studied in the entry Administrative Justice in Chihuahua, Mexico is appropriate.

7) Concurrence of Responsibility

In the event of concurrence in terms of the provisions of paragraph F) of section 6), the payment of the corresponding compensation must be distributed proportionally among all the causes of the claimed patrimonial damage, according to their respective participation. For the purposes of the distribution, the resolving authority shall consider, among others, the following imputation criteria that must be graduated and applied according to each specific case:

I.– Each entity must be attributed the damaging facts or acts that come from its own organization and operation.

II.- Entities on which another entity or entity depends shall only be attributed the damaging facts or acts when the latter cannot act autonomously.

III.- Entities that have the obligation to monitor others, shall only be attributed the damaging facts or acts when the total control and supervision of the monitored entities depends on them.

IV.- Each entity shall be liable for the damaging events or acts caused by the public servants assigned to it.

V.- The entity that has the authority or public service and that with its activity has produced the damaging events or acts shall be liable for them, either by direct provision or by inter-institutional collaboration.

VI.- The entity that has designed works that another entity has executed shall be liable for the damaging events or acts caused when the latter has not had the right to modify the project that caused the claimed patrimonial damage. For their part, the executing entities shall be liable for the damaging events or acts produced when these were not caused by deficiencies in the project prepared by another entity.

VII.- When the damaging events or acts involve the intervention of the federal and local authorities, the former shall be liable under the applicable federal legislation, while the latter shall be liable only for the corresponding part of its patrimonial responsibility following the state law under study.

A) Compensation Reduction

In the event that the claimant for patrimonial responsibility is among those responsible for the injury for which they are requesting compensation, the quantitative proportion of his/her participation in the damage and injury caused shall be deducted from the total amount of compensation.

B) Joint Patrimonial Responsibility

In the event that the exact participation of the parties responsible for the claimed patrimonial injury in its production cannot be identified, a joint responsibility shall be established between them towards the claimant, and the payment of compensation must be distributed equally between all the parties responsible.

C) Responsibility in the Case of an Administrative Concession

If the claims arise from damaging events or acts produced as a consequence of a public service concession and the property damage has been caused by a determination by the concessionaire, which is unavoidable for the concessionaire, the State shall be directly responsible. Otherwise, when the activity of the concessionaire has caused the claimed damage and does not arise from a determination imposed by the concessionaire, the compensation shall be the responsibility of the concessionaire.

D) Mandatory Judicial Resolution

In cases where 2 or more departments or entities are involved in the production of the claimed property damage or when it is assumed that agents are causing the property damage and they do not reach an agreement or convention, the problem must be submitted to the determination of the jurisdictional authority.

By Omar Gómez

Mexican Tax, Administrative and Constitutional Attorney

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