Mexico: The Constitution is amended to broaden the grounds for preventive imprisonment

This amendment establishes additional cases in which judges may impose mandatory pretrial detention (MPD). These include offenses related to illegal introduction, diversion, production, preparation, sale, acquisition, export, transportation, storage, and distribution of chemical precursors and essential chemical substances.

It is important to recall that activities involving such products are regulated by the Federal Law for the Control of Chemical Precursors, Essential Chemical Products, and Machines for Manufacturing Capsules, Tablets, and/or Compressed Products (LPQ), as well as agreements issued on the matter by the General Health Council regarding substances covered by the Law.

Article 19 now includes not only crimes explicitly listed under the LPQ but also considers other offenses as criminal under different regulations, such as the General Health Law (GHL), the Customs Law (CL), and the Federal Fiscal Code (FFC), among others.

This provision and the associated risks must be seriously considered by individuals or legal entities engaged in activities related to LPQ-regulated products in order to prevent potential risks from actions or omissions that may constitute crimes subject to MPD.

There are serious risks that could lead authorities to impose criminal measures, including MPD, in cases involving LPQ-regulated products. Therefore, these risks must be carefully considered. Companies dealing with such products must implement and review their legal controls and establish appropriate protocols to avoid potential criminal implications.

Along the same lines, the decree also amends Article 19 of the Mexican Constitution (CPEUM) to include within the scope of MPD crimes such as smuggling and any activity related to falsified tax receipts.

It is worth noting that, under applicable laws—such as the Customs Law and the Federal Fiscal Code—the elements of the smuggling offense are broad. Key aspects include:

• Total or partial failure to pay foreign trade duties.
• Lack of permits for import or export when required.
• Import or export of prohibited goods.
• Movement of goods from border areas into the rest of the country.
• Removal of goods from customs areas without official authorization.

It is worth noting that, for the tax authorities to proceed with a formal declaration of smuggling, the amount of the corresponding omission must exceed approximately USD $12,500 or 10% of the taxes due, whichever is greater. Alternatively, the omission amount may not exceed 55% of the taxes owed when it results from an inaccurate tariff classification due to a difference in interpretation of the rates established in the general import or export tax law, provided that the description, nature, and other relevant characteristics necessary for the classification of the goods were accurately disclosed to the authorities.

However, there are cases in which these monetary thresholds may not be necessary to establish the offense of smuggling. For example, in cases involving goods classified as prohibited for import or export, a passenger introducing such items—certain medications, vape devices, specific toys (e.g., Garbage Pail Kids), CBD products, etc.—could potentially be committing the crime of smuggling.

Additionally, it should be taken into consideration that the tax and customs authorities may initiate the declaration of smuggling in any of the following cases, in which the commission of such offense will be presumed, unless there is evidence to the contrary:

• Foreign goods are discovered without documentation proving they underwent the required procedures for their introduction into national territory or entry into the border strip or region.
• Foreign vehicles are found outside a twenty-kilometer zone from border towns without the corresponding documentation.
• Shortages or excesses of goods are not justified upon unloading from transport vehicles, in relation to the consignments listed in manifests or cargo guides.
• Foreign goods are surreptitiously unloaded from transport vehicles.
• Foreign goods are found without documentation while in high-seas traffic aboard vessels in territorial waters or aboard vessels engaged in mixed traffic.
• Foreign goods are found on vessels designated for cabotage traffic that either do not reach their destination, have previously stopped at a foreign port before arrival, or shortages of national goods are not justified.
• An aircraft carrying foreign goods lands in a location not authorized for international traffic.
• Foreign goods are introduced into or removed from national territory through unauthorized locations.
• Foreign goods in international transit are diverted from approved routes, transported using unauthorized means, or fail to arrive at the corresponding customs office within thirty days after the maximum period has expired.
• An attempt is made to export, return, withdraw from regime, or conclude transit operations without presenting the goods at the exit customs office.
• Goods intended for the customs regime of bonded warehouse do not arrive at the general warehouse that issued the storage certificate.
• Pilots fail to present aircraft at the designated location for inspection, or maintenance and custody service providers fail to request or retain documentation confirming the inspection.
• Temporary imports are made without authorized programs or with goods not covered by those programs.
• Goods are temporarily imported as inputs when they actually have the characteristics of finished products.
• Goods are temporarily imported under a program that is no longer valid.
• Goods are temporarily imported under an export program by companies that have changed names, merged, or split and have not submitted the required notifications.
• Temporarily imported goods are received by companies that do not have the corresponding programs, the goods are not covered, or their authorized stay period has expired.
• There is no evidence that the temporarily imported goods were returned abroad, assigned to another customs regime, or are located at the declared address for processing, transformation, or repair.
• A declared value is less than 70% of or significantly higher than a rejected transaction value, without such variance stemming from the annexes to the customs declaration.
• The description or tariff classification is inaccurately declared, resulting in failure to pay compensatory duties, unless the customs broker or representative strictly fulfills all their obligations.
• Failure to return, transfer, or change the customs regime of administrative development equipment by companies operating under promotion programs.
•  Foreign goods are transported without a digital tax receipt that includes the "Carta Porte" (Bill of Lading) addendum.
• Hydrocarbons, petroleum products, or petrochemicals are transported by any means without the corresponding digital tax receipt including the required "Carta Porte" and other applicable addenda.

Although the authorities may refrain from issuing a declaration of smuggling when the obligated party spontaneously remedies their obligations, this possibility will not apply in cases where the conduct involves a lack of authorization or the breach of obligations other than payment obligations, particularly those that should have been fulfilled prior to the importation of the goods.

The determination of this type of omissions by the competent authorities may give rise to the filing of a complaint before the courts requesting the judge to issue an MPD in these proceedings.

In this same sense, the wording of the mentioned constitutional reform may give rise to the interpretation that, not only is the MPD applicable to those conducts or omissions that are formally typified as smuggling, but also to similar cases that are provided by article 105 of the CFF as punishable with the same penalties of smuggling such as:

• To sell, acquire, or possess foreign goods without documentation proving their legal presence in the country, without prior authorization from the competent authority, or when their importation is prohibited.
• To import vehicles intended to remain in the border strip or region, or to temporarily bring them into the rest of the country, without having residency in that region, without fulfilling the corresponding requirements, or allowing unauthorized third parties to use them.
• To fail to return to a foreign country goods that should have remained in the same condition, or to use goods subject to export programs for a different purpose than the one for which they were imported.
• To remove alcoholic beverages, tax seals, or attached security labels from customs, bonded warehouses, or fiscal or customs facilities.
• To falsely certify origin in order to import goods under preferential tariff treatment into a country with which an international treaty or agreement exists, and where such treaty provides for sanctions and reciprocity.
• To introduce goods into another country from national territory while omitting full or partial payment of the applicable foreign trade taxes in that country.
• To indicate on the customs declaration the name, business name, or Federal Taxpayer Registry (RFC) code of a person who did not request the foreign trade operation, or to use false data; to indicate a tax address that does not belong to the importer; to list a foreign address where the supplier cannot be located; or to transmit information related to the value and commercialization of goods based on a false invoice.
• To present false or altered documents to customs authorities.
• To transmit to the electronic system information different from that declared in the customs form or invoice, or to attempt to prove the legal presence of foreign trade goods with documents containing information different from that submitted electronically.
• To fail to declare upon entry or exit from the country the carrying of amounts in cash, in national or foreign checks, payment orders, or any other collectible documents—or combinations thereof—that exceed thirty thousand U.S. dollars.

Finally, it must be taken into consideration that, in the matter of crimes subject to the applicability of the MPD, the text of article 19 itself establishes that the interpretation regarding the cases that merit it must be literal, without it being valid to consider another type of analogous or extensive interpretation on which the terms of the MPD can be suspended, modified or rendered nugatory.

As can be seen from the above, the number of grounds for a possible determination of the commission of the crime of smuggling that could be subject to a potential MPD is extremely relevant. Therefore, people who carry out the introduction of foreign trade goods into the country must pay special attention to the situations that could result in the same, even when the corresponding faults or omissions are of a merely administrative nature.