ON THE PRINCIPLE PRO HOMINE APPLICABLE TO THE CASE OF THE SCIENTIST and

HUMANITARIAN DR. JAIME LAGUNEZ OTERO

1) .- According to article 1, second paragraph, of the Political Constitution of Mexico, ammended

by decree published in the Official Gazette of the Federation on June 10, 2000, human rights
standards Must be interpreted in accordance with this Maximum Legal Order and with the
international treaties of the subject, endeavoring at all times to favor the people with the
application of the norm that benefits them the most;

2). - Provision that includes the so-called pro homine principle, consisting of the choice that the
judge must make to apply the most beneficial rule or to perform the broader interpretation if it is
to recognize protected rights, as well as in the election of the Rule or the narrower interpretation
when it comes to establishing permanent limits or extraordinary suspension of rights;

3) .- This implies that if a right is regulated in two or more rules must be chosen that which
favors the person more widely or implies a lower restriction, and if the rule supports several
legally valid interpretations, it should be preferred that which represents Greater protection for
the individual or less restriction of the right.

4) .- According to Article 1o. Of the Political Constitution of Mexico, in its text effective as of June
11, 2000, all authorities, within the scope of their powers, are obliged to promote, respect,
protect and guarantee the human rights established In that and in the international treaties to
which the Mexican State is a party, by interpreting the norms relating to those rights in
accordance with those rules (principle of consistent interpretation), favoring at all times persons
with the broadest protection (pro homine principle ).

5) .- The above, in accordance with the principles of interdependence, indivisibility, universality

and progressivity, of which it is noticed that human rights are interrelated and mutually
dependent on one another and have as their common origin human dignity, It is appropriate to
relegate some to give priority to others and there can be no hierarchy between them, which
means that all human rights must be protected without distinction.

6) .- In accordance with what has been stated and in accordance with Article 103 of the
Constitution, the jurisdictional authorities that are aware of the amparo have a greater
emphasis, due to their functions of providing justice and in accordance with the object of the
aforementioned Trial, "protect" and "guarantee" human rights in disputes under its jurisdiction.

7) .- Articles 8 of the Universal Declaration of Human Rights and 25, paragraph 1 of the
American Convention on Human Rights, establish that everyone has the right to an "effective"
remedy before the competent courts, which To protect them against acts that violate their
fundamental rights recognized by the Constitution and these normative instruments.
8) .- Also, the Plenum of the Supreme Court of Justice of the Nation held in the thesis P. LXVII /
2011 (9a), of the heading: "CONTROL OF EX-OFFICIAL CONVENTIONALITY IN A DIFFUSED
CONSTITUTIONAL CONTROL MODEL." , That the Judges are authorized to carry out an ex
officio control of conventionality, that is to say, regardless of whether the parties invoke it, since
that power should not be limited exclusively by the statements of the plaintiffs in each specific
case. In compliance with all of the foregoing, when the amparo court finds that the general rule,
act or omission claimed by the responsible authority violates the human rights of the
complainant, it must address the study of that violation, regardless of whether the parties invoke
or not Such violation in its concepts of rape or grievances, since this way it favors compliance
with the above principles and safeguards the useful effect of the amparo trial as a means to
protect and guarantee fundamental rights, without, of course, circumventing the presuppositions
Necessary to remedy the deficiency of arguments, such as that the judge has jurisdiction, that
the judgment is appropriate and that the litis raised is respected.

9) .- The jurisdictional supplementation provided for in the Law, since it reveals greater scope
for the subject, in proceeding in favor of any person and not only for the benefit of certain
individuals, a circumstance that, however, does not make it inoperative The benefit regulated by
said law, since it has broader protection in terms of its object, because it is not limited to
violations of human rights in matters of constitutionality and convention, but also of legality. The
foregoing suggests that although both types of substitution may occur in certain cases, in
others, one or the other may be appropriate, so that contemplated in the Amparo Law continues
to be fully effective in the cases it envisages.

10) .- Although the amendment to article 1o. Of the Political Constitution of the United Mexican
States of June 10, 2011, implied the modification of the Mexican legal system to incorporate the
so-called pro person principle, which consists in providing the broader protection to the
governed, as well as international treaties in Human rights, including the right to an effective
remedy, provided for in Article 25 of the American Convention on Human Rights, this does not
mean that in any case the court must resolve the merits of the case, regardless of the
verification of The procedural requirements are the way that makes possible to arrive at an
appropriate resolution, reason why such aspects, by themselves, are insufficient to declare
proper It improperly.

11) .- The human rights recognized in international treaties ratified by the Mexican State
become part of the domestic legal system, so that they expand the catalog of those, which was
one of the objectives of the constitutional reforms published in the Official Gazette Of the
Federation on June 6 and 10, 2011.

12). Thus, in the first reform, the origin of the amparo trial was expressly extended to those
cases in which the rights provided for in international treaties had been violated, whether or not
they were recognized in the Political Constitution of the States United Mexican States; While in
the second, it was categorically recognized that in Mexico all persons are entitled to the rights
recognized in the General Constitution of the Republic and in the international treaties ratified by
the Mexican State.

13) .- Now, considering that the amparo trial is a judicial mechanism created to protect the
human rights of individuals, properly constitutional issues - in the case of direct interpretation of
constitutional precepts - raised in the amparo trials Direct and especially in the review resources
promoted against the executors resulting from them, will refer to the interpretation of
fundamental rights.

14) .- For the above, it would be impossible to challenge in an appeal for review the lack or
improper interpretation of a human right recognized in international treaties if such interpretation
is not considered as a properly constitutional issue, which would be contrary to the functioning
of the amparo As well as of the constitutional text itself, since even though the guiding principle
of the remedy for review provides for a limited scope of action to be taken against direct relief
sentences, the Federal Constitution was reformed to expressly include Rights recognized in
international treaties as part of the catalog of rights that enjoy constitutional protection, which
was harmonized with the reform on amparo that recognized the origin of the trial to repair
possible violations committed to such rights.

15) .- In this sense, although this extension of the rights protected through amparo proceedings
was not expressly included in article 107, section IX, constitutional, this can not be interpreted in
isolation from the rest of the constitutional principles, especially of those newly Modified.
Consequently, the appeal for review in direct amparo proceeded to hear the interpretation that
the collegiate circuit courts make of the rights recognized in international treaties, regardless of
their recognition in the Constitution, because it is a properly constitutional issue.

16) .- It is unnecessary to refer to the human rights established in the international instruments if
in accordance with the principle pro persona manifested in article 1o. Of the Political
Constitution of the United Mexican States, as of the reform published in the Official Gazette of
the Federation on June 10, 2011, the Basic Law itself is sufficient to provide for them, as
determined by the Second Chamber of the Supreme Court of Justice of the Nation, in thesis 2a.
XXXIV / 2012 (10a.), Published in the Judicial Weekly of the Federation and its Gazette, Tenth
Period, Book VIII, Volume 2, May 2012, page 1348, heading: "HUMAN RIGHTS: ITS STUDY
FROM THE REFORM TO ARTICLE 1, CONSTITUTIONAL, PUBLISHED IN THE OFFICIAL
JOURNAL OF THE FEDERATION ON JUNE 10, 2011, NECESSARILY IMPLIES THAT THE
INTERNATIONAL INSTRUMENTS ARE INVOLVED, IF THE FOREGOING THAT CONTAINS
THEREOF THE POLITICAL CONSTITUTION OF THE UNITED STATES SUFFICIENT
MEXICAN. ".

17) .- The pro homine principle and the control of conventionality are protected by article 1o. Of
the Political Constitution of the United Mexican States, as of the entry into force of its reform
published in the Official Gazette of the Federation on June 10, 2011. The pro homine principle is
applicable in two areas, Preference of rules and of interpretative preference, this implies that the
judge should privilege the norm and the interpretation that favors to a greater extent the
protection of the people.

18). "Conventional control", for its part, establishes the obligation of the judges to interpret
human rights norms, in accordance with the Constitution and international treaties of the
subject, favoring the broader protection of people. However, its application does not imply
ignoring the formal and material presuppositions of admissibility and provenance of actions,
because for the correct and functional administration of justice and the effective protection of the
rights of individuals, the State can and must establish budgets and criteria Of admissibility of the
means of defense, which, as a general rule, can not be surpassed by the mere invocation of
these guiding principles of application and interpretation of norms.

19) .- Of articles 107, section IX, of the Political Constitution of the United Mexican States; 83,
fraction V, 84, fraction II, 89, last paragraph, 90, last paragraph, and 93 of the Amparo Law; 10,
section III and 21, section III, subsection a), of the Organic Law of the Judicial Power of the
Federation, warns the cases in which it is appropriate to analyze, through the review appeal, the
sentences issued in direct amparo. For its part, paragraph 25 of the American Convention on
Human Rights establishes the right of everyone to a simple and prompt recourse or any other
effective remedy before the competent judges or tribunals, to protect against acts that violate
their recognized fundamental rights By the Constitution, law or convention, even if such violation
is committed by persons acting in their official capacity.

20) .- Consequently, article 83, section V, of the Amparo Act, when determining the grounds of
appeal of the review appeal against the decisions that directly by the Circuit Court Circuits,
when deciding on the constitutionality of laws Federal or local laws, international treaties,
regulations issued by the President of the Republic in accordance with section I of article 89 of
the Constitution and regulations of local laws issued by the governors of States, or when they
establish the direct interpretation of a provision of the Constitution , Does not violate the right to
an effective judicial remedy provided for in paragraph 25, since it does not have a condition of
self-enforceability, since it is not in itself the basis for the merits of the review appeal, but only
establishes a General principle, whose possibilities will have to be articulated from its
development in the legal system, in which will be guaranteed its decision by the competent
authority; Hence, the Convention itself establishes a condition of reservation of the legal system
of the Mexican State, consistent, in this case, with articles 14 and 17 of the Political Constitution
of the United Mexican States, according to which the administration of justice It will give in the
terms and terms that the laws establish and precisely, according to the essential formalities of
the procedure provided for in the laws issued prior to the fact.

- Prof. Jos Antonio Foronda, Mexico City, Mexico

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