SCJN limits FGR access to bank accounts

Without a warrant from the judicial authority, the federal Public Ministry cannot require financial information for the purpose of a criminal investigation, the Supreme Court of Justice of the Nation (SCJN) ruled.

Upon resolving by precedent the amparo under review promoted by Peter Bauer Mengelberg López, accused of tax fraud, to challenge article 142, section I, of the Credit Institutions Law, the First Chamber of the country’s highest constitutional court approved by four votes out of five that said normative portion is unconstitutional.

Allowing the ministerial authority to request bank information without prior judicial authorization is not part of the power to investigate crimes contained in Article 21 of the Constitution, nor of the extension of powers to break into private life expressly protected by Article 16 constitutional, specifies the sentence formulated by Minister Margarita Ríos Farjat.

It clarifies that the opposite occurs in those cases in which the request for financial information by the State is for fiscal purposes, in which case it has been determined that the right to privacy is not violated.

The tax authority does not require prior judicial authorization to request information strictly related to the investigation, inspection or verification of taxpayers’ tax obligations, because to do so would be depending on a different authority to carry out its functions of protection of the State’s assets, determined the Court.

Right to privacy

The ministers resolved that allowing the Public Ministry to request financial information from a person subject to criminal investigation to verify the commission of a crime or the probable criminal responsibility of the accused, translates into a violation of the right to privacy.

The ruling provides that the intervention of the judicial control authority is imposed as necessary, in order to determine if the interference with said right is justified.

“So that the mere exercise of the investigative power that exists in charge of the State, through the public ministry, is not enough to allow the affectation of the fundamental right in question,” it concludes.

rolando.ramos@eleconomista.mx