The following information on the recurso de amparo is in addition to MEX28359.E of 20 November 1997 and MEX28146.E of 14 October 1997.

In correspondence sent to the Research Directorate on 31 August 2000 by the Consul at the Mexican Embassy in Ottawa, it is noted that Articles 103 and 107 of the Mexican Constitution regulate the recurso de amparo procedure and its application. Copies of the Mexican Constitution are available in English at all Regional Documentation Centres. In her letter, the Consul summarizes recurso de amparo as:

A remedy against acts by any authority that violate any of the individual guarantees recognized by the same Constitution (articles 1-30, 127, 123). It is available in all legal matters and may be invoked in criminal, civil and administrative trials. So the "recurso de amparo" may be employed by any party involved in a domestic violence case.

On the issue of domestic violence, the Consul states that:

Mexican law in its civil and criminal codes makes specific reference to domestic violence and describes this as (article 323, Civil Code of the Federal District, which applies on both a local and federal level), "the use of violence by any family member, be it physical or psychological, against the physical or psychological integrity of any other family member, whether it produces a wound or not." Mexican law in its civil and criminal codes provides different resources to victims of domestic violence to stop these aggressions"...The Federal Criminal Code [Codigo Penal Federal] describes domestic violence as a crime. This crime will be prosecuted in response to a complaint by the victim, unless the victim is a minor or a mentally disabled person in which case the authorities will initiate the procedure (31 Aug. 2000).

Article 343 bis of the Federal Criminal Code stipulates that domestic violence is punishable with six months to four years imprisonment and psychological treatment (14 Aug. 1931/12 June 2000).

In its January 1999 report entitled Systemic Injustice: Torture, "Disappearance," and Extrajudicial Execution in Mexico, Human Rights Watch stated the following on recurso de amparo:

Mexico's justice system provides for expansive federal-court authority for reviewing the actions of government authorities and laws. The writ of amparo gives federal Mexican courts jurisdiction to entertain any case involving a violation of the Mexican federal constitution through a challenge filed before a federal district court. A challenge could also be made to review a final judgement rendered by a state court that allegedly misapplied state law. The benefit of amparo holds only for the individual case in which the writ was filed.

Mexican law also provides for constitutional appeal known in Spanish as amparo. It can be used to challenge the unconstitutional actions of authorities or the constitutionality of laws (Section 3).

With specific reference to a restraining order, the Consul states that the Mexican Code of Civil Procedure allows a judge to issue one "as a precautionary measure and as a part of a final judgement." The Consul did not elaborate on whether a restraining order could be renewed and how effective the courts or police were in enforcing it (31 Aug. 2000).

In correspondence dated 8 September 2000, the coordinator of the Program on Women, Children and Family (Programa de la Mujer, el Niño y la Familia) at the National Human Rights Commission (Comisión Nacional de los Derechos Humanos) in Mexico City stated that, with reference to restraining orders in cases of domestic violence in the Federal District, an attorney can request that an aggressor refrain from any conduct that could be offensive for the victim and can issue all protection measures necessary to protect the victim (el Fiscal puede pedirle al responsable quedebe absternerse de cualquier conducta que pueda resultar ofensiva para la víctima, y acordará todas las medidas que el considere nescessarias para protegerla). The administrative authorities would then be responsible for ensuring that these protection measures are implemented.

The following information was provided by the director of the Domestic Violence Prevention Program at the National System for Integral Development of the Family (Sistema Nacional para el Desarrollo Integral de la Familia, DIF) in Mexico City on 26 October 2000. She stated the following on recurso de amparo in the context of domestic violence [translation]:

The Juicio de Amparo is an appeal proceeding which may be brought by anyone affected by any resolution or act emanating from a government authority, where such resolution or act may cause damage or injury to that individual.

If your question is whether a battered woman can bring an amparo appeal to force her husband or partner to stop beating her, the answer is that no, an amparo is not the appropriate remedy since her partner or husband is not a government authority.

A Juicio de Amparo could only be filed in the case where the victim petitioned a Family or Criminal Court judge for an injunction protecting her from acts of domestic violence, and the judge has refused to grant her petition.

On the issue of restraining orders and other protection measures available to victims of domestic violence, the director stated [translation]:

If I understand your second question, you are asking whether there are any protective measures that a victim of domestic violence can seek from a judge in order to prevent others from continuing to commit acts of family violence.

Article 282 of the Civil Code for the Federal District specifies the following protective measures for the case of a divorce which has been filed on the grounds of domestic violence:

(a) Prohibiting the respondent spouse from going to a specified location.

(b) An order requiring the respondent spouse to vacate the conjugal domicile.

(c) Prohibiting the respondent spouse from going to the place of work or school, or coming within a certain distance of the alleged victims of his or her acts of domestic violence.

Please note that this provision only came into force on June 1, 2000, and our Department has no direct knowledge of whether or not these protective measures have been applied yet.

However, what we hear in the various meetings attended by this Department is that Family Court justices are a little leery of applying these protective measures since they feel that they violate the individual guarantees set out in the Constitution of the United Mexican States.

Just as an example, if the respondent spouse is the owner of the family home, the judges are of the opinion that ordering him or her to move out would be a violation of the right to own property.

To this must be added certain other difficulties, such as the fact that:

(a) These measures are only available in the case of a divorce, although they may be sought before the divorce action is actually filed. In that case, assuming that the judge orders the protective measure, the person requesting it has 15 days (renewable for a further 15 days) to show proof that he or she has filed for divorce.

(b) In order for the judge to order such measures, the victim must be the one who initiated a divorce action. Much care is necessary in this respect, since in the majority of cases the first to file for divorce is the aggressor, hoping to have himself or herself deemed the victim by the respective Family Court Judge. If this ruse succeeds, the person forced to leave the family home is in fact the real victim in the case. A victim, I might add, who in most cases lacks the necessary resources or support network.

Finally, from what I have been able to learn from indirect sources, the only protective measures that Criminal Court Justices have issued is one that orders the aggressor to cease to molest the victim.

Several attempts to obtain additional information from the Attorney General's Office for Justice, the Support Centre for Victims of Domestic Violence (CAVI) and the National Women's Program (PRONAM) in Mexico City were unsuccessful within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

References

Embassy of Mexico, Ottawa. 31 August 2000. Correspondence from the Consul.

Human Rights Watch (HRW). January 1999. Systemic Injustice: Torture, "Disappearance," and Extrajudicial Execution in Mexico. http://www.hrw.org/ reports/1999/mexico/Mexi991-03.htm [Accessed 4 Aug. 2000]

Mexico. Codigo Penal Federal. Published officially on 14 August 1931 with applied reforms up to 12 June 2000. http://www.cddhcu.gob.mx/leyinfo/pdf/11.pdf [Accessed 14 Sept. 2000]

Nacional Human Rights Commission, Mexico City. 8 September 2000. Correspondence from the Coordinator of the Program on Women, Children and Family.

Sistema Nacional para el Desarrollo Integral de la Familia (DIF), Mexico City. 26 October 2000. Correspondence sent by the director of the Domestic Violence Prevention Program. Translation by the Multilingual Translation Directorate of Public Works and Government Services Canada.

Additional Sources Consulted

IRB Databases

LEXIS/NEXIS

World News Connection (WNC)

Internet sites including:

Amnesty International

Excélsior [Mexico]. Search Engine. 1996-2000

Informador [Guadalajara].

La Jornada [Mexico]. Search Engine. 1996-2000.

El Universal [Mexico].

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