MEXICO Law and Practice Contributed by: Gilberto Miguel Valle Zulbarán, Alejandro Catalá Guerrero and Erick Gustavo Soto Ceballos, Basham, Ringe y Correa
• prohibition from carrying out activities where the crime took place for a period of six months to ten years; • prohibition from participating or bidding in government tenders for a period of six months to ten years; • judicial intervention for safekeeping employ - ees or creditors’ interests for six months to six years; • a fine; or • dissolution of the legal entity. The judicial authority has sole discretion and power to determine the severity of the penalty, and, in connection with the legal entities, can select the most suitable penalty from those listed above. However, the penalty selected for a legal entity must be proportional to the dam - age caused. Some of the aspects to be consid - ered include the extent of the lack of control; the amount of money involved in the crime; the employment position of the perpetrators within the legal entity; the level of compliance compro - mise at the company; the damages caused and the social impact of the consequences. Considering that dissolution is the most seri - ous penalty, the judicial authority also assesses whether this is strictly necessary to warrant national and public security; prevent the national economy or public health from being jeopard - ised; or whether the commission of the criminal offence can only be ceased by dissolving the legal entity. 5.2 Guidelines Applicable to the Assessment of Penalties There are no guidelines in Mexico, since the pen - alties and the criteria for their applications must be provided by law.
When determining the extent of the penalty, the criminal judge must take into consideration, pursuant to Article 410 of the National Code of Criminal Procedure (NCCP): • the interests protected by the criminal offence; • whether the conduct was wilfully committed or not; • the means used for the commission of the criminal offence; • the circumstances in which the criminal offence was committed; • the contribution of the perpetrator to the commission of the criminal offence; and • whether it was possible for the perpetrator to avoid commission of the criminal offence. Moreover, in the case of public officials involved in criminal offences connected to acts of corrup - tion, the FCC provides that judges must take the following into consideration: • the hierarchical level of the public official; • their level of responsibility pursuant to the job, charge, or commission; • their seniority; • the backgrounds of the public service per - formed, incomes, and degree of education; and • any other special circumstances connected to the illicit conduct of the public official. For criteria for determining the penalty against legal entities, see 5.1 Penalties on Conviction .
6. Disclosure Processes 6.1 Disclosure Obligations
Pursuant to Article 222 of the NCCP, any individ - ual who is aware of the commission of a criminal
290 CHAMBERS.COM
Powered by FlippingBook