Título Cuarto. Medidas precautorias

When persons belonging to organized criminal groups are criminally prosecuted, in addition to what is established in the Code of Criminal Procedure, the following measures may be used:

1.Travel restriction.

2.Seizure and attachment of property.

3.Immobilization of bank accounts and immovable property.

4.Seizure of books and accounting records.

5.Suspension of patents and permits that have been duly issued and that have been used in any manner for the commission of the unlawful act.

6.Interim protective measures for property subject to forfeiture:

a.Seizure.

b.Occupation.

The seizure and attachment of the property of accused persons belonging to organized criminal groups, which is the direct product of the crime or of the transformation or conversion into other property, may be ordered.

The seizure and attachment of the property referred to in the preceding paragraph may also be ordered when such property appears registered in the name of third parties.

Unless in a judgment the competent tribunal in accordance with the law on the matter has declared that the extinction of domain shall not be declared, the property seized in proceedings for crimes committed by organized criminal groups, after the criminal judgment has been rendered and where such judgment provides for the confiscation of the seized property, the Supreme Court of Justice may [dispose of it to those] responsible for preventing, controlling, investigating and prosecuting such crimes.

The victim may request that his or her seized or attached property, constituting proceeds of criminal activity, be restored to him or her in proceedings instituted for crimes committed by organized criminal groups, provided that he or she proves that he or she was dispossessed of such property in the commission of the unlawful activity.

The judge or tribunal of the case may order the return during the proceedings, to the claimant, of the property, products or instruments of non-prohibited use or of lawful commerce, when it has been proven and concluded in the incidental proceedings that:

a)The claimant has a legitimate right with respect to such property, products or instruments;

b)The claimant is not identified as a perpetrator or participant in any type of crime related to an organized criminal group;

c)The claimant did not acquire any right in the property, products or instruments from the person under prosecution, under circumstances that will reasonably lead to concluding that the right therein was transferred to the claimant to avoid possible criminal prosecution and subsequent confiscation thereof;

d)The claimant took the steps within the claimant's reach to prevent the illegal use of the property, products or instruments.

Before making the return effective, the prosecutor shall carry out all necessary measures to secure the evidence.

If the judge had ordered the return as a deposit, the claimant shall exhibit such property, products or instruments when so requested by the judge, competent tribunal or the Public Prosecutor's Office.

The bank accounts of the accused or of persons who have directly or indirectly benefited from the crimes committed by them may be frozen, investigated, or accessed. The prosecutor shall make the request to the judge controlling the investigation.

When the evidence gathered by the Public Prosecutor's Office is clear in that there is a well-founded presumption that the immovable property or registrable movable property of a person belonging to organized criminal groups is in danger of being concealed, disappearing, or being subjected to simulated acts transferring ownership thereof, the Public Prosecutor's Office shall request judicial authorization for immobilization of immovable property or registrable movable property, so that the same cannot be disposed of, simulated, or encumbered by the person under investigation.

Immovable property or registrable movable property owned by third parties may be immobilized by means of judicial authorization, when there is clear evidence that such persons have directly or indirectly benefited from the proceeds of the crime committed by a member of an organized criminal group.

The seizure of books and accounting records may be carried out by means of a final decision issued by a competent judge, provided that there exist grounds that are indispensable to secure sources of evidence pertinent to the object of the investigation.

The registrations of legal persons, their patents, permits and licenses lawfully issued, may be provisionally suspended during the conduct of the criminal proceedings, with judicial authorization for a time limit of no more than one year, when they have been used in any manner to commit an unlawful act among those established in this Law.

The provisions of this article are not applicable to legal persons under public law subject to specific regulations or to laws of constitutional rank. Nor are they applicable to political organizations, which, for purposes of suspension and/or cancellation, are solely subject to the Electoral and Political Parties Law.

When flagrancy exists in the commission of a criminal act and property related to criminal activity that may be subject to confiscation is found, in case of danger due to delay, the prosecutor may order seizure, having to immediately request judicial authorization, lodging the things or documents before the competent tribunal. The things or documents shall be returned if the tribunal does not authorize their seizure.

If the action for extinction of domain has not been previously initiated in accordance with the law on the matter, once the measures referred to in Articles 73, 74, 78, 79, 80 and 83 of this Law have been ordered, the Prosecutor General shall take the necessary measures to ensure that the Public Prosecutor's Office initiates the investigation and exercises the action for extinction of domain in the manner provided by law. The action for extinction of domain shall have preference over any other procedure of an equal or similar nature contemplated in this Law.

in Article 76 of this Law.

In cases in which the authorization or validation of the precautionary measures must be requested, the prosecutor shall submit a request substantiating the need for the measure, attaching a copy of the evidentiary elements justifying it for the success of the investigation. The prosecutor must indicate the term of duration of the requested measure and the specifications necessary to implement them; in no case may the measure exceed the time limit of one year.

The judge shall rule immediately by reasoned decision on the admissibility or inadmissibility or the validation of the measure. If the judge does not validate the prosecutor's action, the judge shall set aside what was done, expressly indicating the prohibition on using the information obtained in the criminal proceedings.

Once the measure has been executed, the judge shall notify the affected person of the decision ordering it, who may express disagreement therewith by way of incidents.

(Paragraph added by Article 67 of Decree 55-2010 of the Congress of the Republic – Law on Extinction of Ownership –). Where the action for extinction of ownership is applicable, pursuant to the governing law, the incident shall not be admitted except on the terms established by the Law on Extinction of Ownership.

Public and private institutions are obligated to submit the information requested from them by the competent authority within the framework of this Law. In case of unjustified refusal, without prejudice to legal actions against whoever disobeys the request, the seizure of such information shall be authorized, as well as the manual or computer records held by such entities.

For purposes of this Law, the ownership or possession right over property resulting from illicit activities committed by organized criminal groups is extinguished by:

a)Restitution to the victim, under the established terms

b)Forfeiture, which shall become part of the private funds of the Judicial Branch.

When the property derived from the crime is of illicit commerce or of prohibited use, the Public Prosecutor's Office may request, by incidental proceedings, the extinction of the right of ownership or possession thereof through confiscation, once a prosecution order exists.

When such property is of illicit origin but of licit commerce, the Public Prosecutor's Office shall initiate the action for extinction of domain, in accordance with the law on the matter.