In Mexico there are two criminal jurisdictions: federal and state. The federal criminal offences are provided for in the Federal Criminal Code (FCC) and certain federal laws, and each of the 32 states in Mexico have a Criminal Code in which the local criminal offences are set out.

In Mexico, there is no distinction between criminal offences, ie, if they are considered as misdemeanours or felonies.

A perpetrator can be held accountable for an act or an omission (actus reus) that meets the elements of the crime provided in the criminal law, whether such act or omission was purposely or recklessly (mens rea) committed.

In the crimes in which a result is required as a constituent element, it is possible that a person is accountable for it by an omission if they omitted to prevent such result and had a legal duty to prevent it.

An act or omission is considered as purposeful when the perpetrator is aware that their conduct constitutes a crime and as reckless when the perpetrator failed to exercise reasonable or proper measures to prevent the result of the crime that is caused or occurred because they (i) were not aware of the risk that led to said result but should have been aware of the risk or (ii) consciously disregarded a substantial and unjustified risk.

An attempted crime is also punishable when its execution started, whether through an act or omission, but did not conclude due to external circumstances beyond the control of the perpetrator that did not allow the conclusion of its perpetration.

Pursuant to Article 130 of the National Code of Criminal Procedure (NCCP) the burden of proof relies on the Public Prosecutor, since it is the authority responsible for leading the investigation and proving the defendant’s guilt. In Mexico’s criminal proceedings, there are two instances when the burden of proof applies.

• Initial hearing: when deciding that the case should be further prosecuted, the Public Prosecutor shall prove to the Criminal Judge that there are reasonable grounds for stating the possibility that a crime was committed and the defendant is responsible for it.
• Trial hearing: the Trial Court will convict the defendant when the Public Prosecutor proves beyond reasonable doubt that the defendant is responsible for the crime committed.

Throughout the criminal proceedings, the defendant shall be presumed innocent until there is a judgment convicting them, since this is a human right recognised in the Mexican Constitution and international treaties signed by Mexico.

For certain crimes the criminal law provides presumptions, ie, Article 400 bis of the FCC (Money Laundering) provides the presumption that the products, resources or goods are proceeds of a crime when the legitimate origin cannot be proven and there are legal grounds to prove that they came from, directly or indirectly, or represent the profits of a crime; however, such presumption does not substitute the Public Prosecutor’s burden of proof.

The statute of limitations applies to the investigation of the crime and the enforcement of the conviction.

For the investigation and further prosecution of the crime, the statute of limitation starts to run:

• once the crime has been committed if it is an instantaneous crime;
• from the last act executed or omission made regarding attempted and continuous crimes; or
• once its perpetration ceased if it is a permanent crime.

The statute of limitations only stops when the defendant is brought before a Criminal Judge; so the statute of limitations remains on hold during the criminal proceedings.

The statute of limitations varies depending on the penalty. Pursuant to Articles 104 to 106 of the FCC, the following apply.

• The limitation period is one year for crimes sanctioned only with a fine.
• For crimes sanctioned with imprisonment or with imprisonment and a fine, the statute of limitations is the arithmetic average of the prescribed custodial penalty. The arithmetic average is determined by the sum of the minimum and the maximum imprisonment penalty for the crime, which is then divided in half to determine the limitation period in which a crime can be investigated, which cannot be less than three years.
• Unless otherwise specified, the limitation period is two years if the crime only stipulates sanctions such as discharge, suspension, deprivation of rights or disqualification.

Moreover, when the crime is being investigated in the first half of the arithmetic average, the investigation suspends the statute of limitation, and such term can only be extended by half.

It is worth mentioning that when a crime is prosecuted as per the request of the victim (querella), Article 107 of the FCC sets forth a three-year term for filing the criminal complaint counting from when the crime was committed and one-year term counting from the moment the victim became aware of the crime and the identity of the perpetrator. Failure to comply with such terms for denouncing the crime will bar its prosecution, regardless of the statute of limitations for the investigation.

On the other hand, for the enforcement of the penalties imposed in a judgment, the statute of limitations is as follows pursuant to Article 113 of the FCC.

• For custodial penalties, it will be equal to the duration of the sentence plus one quarter more, but not less than three years.
• For crimes that impose only a fine as a sanction, the statute of limitations is one year.
• For other sanctions, it will be equal to the duration of the penalty plus one quarter more, but not less than two years.
• For penalties without a specified duration, the limitation period is two years.

Article 103 of the FCC establishes that the statute of limitations for custodial or restrictive penalties is continuous and begins the day after the convicted person evades justice, if the convicted person was not previously in jail or escaped from it.

For penalties not involving imprisonment or restrictive measures, such as fines or alternative sanctions, the statute of limitations begins on the date the judgment is definitive.

In general terms, if a crime is committed abroad under the circumstances provided in the FCC, Mexico will have jurisdiction for its prosecution, and it will be considered as a federal crime.

In that regard, Articles 2 to 5 of the FCC provide several hypotheses for extraterritorial jurisdiction, such as the following.

• When the crime is initiated, prepared or committed abroad but its effects occurred or are intended to occur within Mexico, or regardless of the effects, when there is a binding treaty to which Mexico is a party which requires either extradition or prosecution and (i) the perpetrator is in Mexico; (ii) there is no conviction against the perpetrator in the country where the crime was committed and (iii) the double criminality principle is met.
• For the continuous crimes committed abroad when their perpetration continues in Mexico regardless of the citizenship of the perpetrators.
• For crimes committed abroad by Mexicans against Mexicans or foreigners, or by foreigners against Mexicans, under the following conditions:
1. the accused is in Mexico;
2. the accused has not been definitively judged in the country where the crime occurred;
3. the offence is classified as a crime in the country where it was committed and under Mexican law, in accordance with the principle of double criminality; and
4. when the offence is committed in Mexican vessels, airships, consulates and embassies.

For white-collar crimes, if the relevant international treaty does not explicitly specify the crimes for which extradition is applicable, extradition will be granted provided that the requirements for doing so are satisfied.

In connection with the above, Mexico has 48 bilateral and two multilateral agreements specifically on criminal legal co-operation.

Multilateral Agreements

The two multilateral agreements are the Inter-American Convention on Serving Criminal Sentences Abroad and The Inter-American Convention on Mutual Assistance in Criminal Matters, among the member states of the Organization of American States (OAS).

Bilateral Agreements

• Mexico has criminal legal assistance and extradition agreements with 27 countries, including Cuba, Dominican Republic, Costa Rica, Italy, India, Brazil, Spain, Switzerland, South Korea, Bolivia, Paraguay, China, Ecuador, Portugal, Honduras, Nicaragua, El Salvador, Venezuela, Uruguay, Peru, Argentina, Chile, Canada, Greece, Australia, France and Panama.
• It has execution and enforcement of criminal judgments agreements with 16 countries, including Cuba, Honduras, Peru, Nicaragua, Panama, Bolivia, Guatemala, Venezuela, Belize, United States, United Kingdom, Spain, Canada, Northern Ireland, Russia and El Salvador.

If no international treaty governs the circumstances or conditions for extradition, the International Extradition Law will apply.

The criminal liability of legal entities is regulated respectively for federal and local crimes (in each of the 32 local criminal codes); however, such regulation is not uniform, so the circumstances under which a legal entity can be indicted depends on each regulation. The crimes that can be indictable for a legal entity also vary, ie, for federal crimes there is a catalogue of crimes provided in Article 11 bis of the FCC, so the legal entities can only be accountable for the crimes provided therein.

In general terms, the legal entities shall be criminally liable for crimes committed on their behalf, on their account, for their benefit, or through the means provided by them, when it is determined that there was a failure to exercise due control within their organisation.

Therefore, if a crime is committed by an individual, such as a representative, executive, officer or employee of a legal entity and such crime can be indictable to the latter, both the individual and the legal entity can be investigated. However, if the individual is exonerated that does not automatically imply that the legal entity will be too, since the criminal liability is autonomous for both.

It is worth mentioning that criminal liability cannot be automatically attributed to an individual solely by virtue of being a partner, director, manager, shareholder or representative of a company; the actus reus and mens rea elements must be proven.

In the context of a company merger, absorption or acquisition, the successor or resulting entity may be held responsible for crimes committed by the entity originally liable. In such cases, the penalty may be adjusted according to the relationship between the successor and the legal entity responsible for the crime.

Penalties for individuals, such as imprisonment and fines, shall be established in the statutory definition of each crime or explicitly remit to the article in which such penalties are provided. A minimum and a maximum shall be provided for the penalties.

When determining the quantum of the penalty within the minimum and the maximum limits provided for the specific crime, the Criminal Judge shall consider the following pursuant to Articles 52 of the FCC and 410 of the NCCP:

• the interest protected by the crime and the magnitude of the damage caused;
• the nature of the act or omission;
• if the conduct was intentionally committed or not;
• the means used for the commission of the crime;
• the circumstances in which the crime was committed;
• the contribution and intervention of the perpetrator in the crime commission;
• whether the perpetrator was avoiding the commission of the crime; and
• the behaviour of the perpetrator in connection with the crime after its commission.

In connection with penalties for legal entities for federal crimes, the FCC provides the following penalties:

• suspension of activities from six months up to six years;
• closing down of an establishment or premises from six months up to six years;
• prohibition of carrying out the activities where the crime was committed for a period of six months up to ten years;
• prohibition of participating in government tenders for a period of six months up to ten years;
• judicial intervention for safekeeping the employees’ or creditors’ interests for six months up to six years.
• a fine; and
• dissolution of the legal entity.

In connection with the penalties for legal entities, the Criminal Judge can select the most suitable penalty from those listed above. However, the penalty selected for a legal entity must be proportional to the damage caused. Some of the aspects to be considered include:

• the extent of the lack of control;
• the amount of money involved in such crime;
• the employment position of the perpetrators within the legal entity;
• the compliance compromise level of the company;
• the damages caused; and
• the social interest of the consequences.

Considering that dissolution is the most serious penalty, the Criminal Judge shall also assess whether such penalty is strictly necessary to warrant the national and public security and whether the national economy or public health is jeopardised, or whether the commission of the criminal offence can only be ceased by dissolving the legal entity.

Regardless of the type or nature of the crime, all the victims shall be indemnified since it is a human right, as stipulated by international treaties such as the American Convention on Human Rights and the Mexican Constitution. Such indemnification shall comprise a full restitution by considering all the damages, loss of profits and consequences as a result of the crime, among other concepts.

In that regard, economic damages should comprise all the losses and costs incurred as a consequence of the crime, but each concept claimed as indemnification shall be duly proved.

The Trial Court shall decide on the payment of the indemnification and determine its quantification; however, the quantification can also be done during the enforcement proceedings carried out by the Criminal Enforcement Judge.

In addition to the indemnification established in the FCC and local criminal codes, the General Law for Victims provides additional reparation measures aimed at recognising and ensuring the rights of crime victims.

Mexico’s Attorney General’s Office is in charge of the investigation and prosecution of federal crimes, which has Specialised Prosecution Offices for investigating several white-collar crimes such as tax and financial crimes; money laundering; copyright and industrial property crimes. Also, it has an Specialised Prosecution Office for International Matters, which can investigate white-collar crimes committed abroad as specified in 1.4 Extraterritorial Reach and Cross-Border Co-operation.

For local crimes, each of the Attorney General’s Offices of the 32 states can investigate and prosecute white-collar crimes that fall under their jurisdiction; they also have specialised units for investigating patrimonial crimes such as fraud, theft, embezzlement and breach of trust.

Regarding crimes of corruption, at both federal and local levels, there is a special prosecutor’s office to combat corruption, which operate as autonomous agencies. Also, the corruption acts can be prosecuted as administrative offences, for which the governmental bodies have internal audit offices.

The Attorney General’s Offices have a police unit and for certain crimes there are specialised police units. The police officers shall conduct the investigation under the terms or instructions provided by the Public Prosecutor since it is the body with powers for investigating the crimes.

For both federal and local crimes, there are no specialised criminal judges for white-collar crimes, so the federal and local criminal judges process the cases related to white-collar crimes that fall under their jurisdiction.

There are no specific rules or guidelines that govern the initiation of a white-collar crime investigation. The Attorney General’s Offices, whether federal or local, initiate the investigation once they are notified of a white-collar crime whether by an individual when it is prosecuted ex officio, or by the victim or offended party when it is prosecuted by querella. 

The Attorney General’s Offices, whether the federal office or local offices in each of the 32 states, have powers to request any information that it is necessary for the investigation and can carry out any investigative act to obtain information, provided that is connected with the crime under investigation.

However, when such investigative acts can affect human rights, the authorisation for carrying them out must be granted by a Criminal Judge, ie, for obtaining banking information which is protected by the bank secrecy regulation, such authorisation must be granted by a Criminal Judge and then the request to the bank for said information is submitted through the National Banking and Securities Commission.

The carrying out of raids must also be authorised by a Criminal Judge and, in the case of seizures, when human rights may be affected, prior authorisation is also needed.

Additionally, under Article 215 of the NCCP, any private party or public official is obliged to provide to the Public Prosecutor any information or documentation that it is required, and Article 360 of the NCCP sets out the obligation to testify. However, in both cases, the restriction on self-incrimination applies.

As further explained in 3.3 Anti-bribery Regulation, legal entities shall establish adequate protocols and procedures for crime prevention, as well as monitoring and reporting systems, so when a non-compliance activity is carried out or a risk turns into a contingency, the company shall take proper measures, such as carrying out an internal investigation, and mitigate the consequences.

Even though there are no guidelines for carrying out internal investigations, the human rights of the involved parties and the rules for producing evidence provided in the NCCP shall be respected and observed, in order to avoid that the evidence obtained, produced or collected is nullified in a criminal proceeding. Likewise, it is important to consider the attorney-client privilege when carrying out internal investigations.

The findings of the investigation can lead a company to decide whether to self-report or not, since the privilege against self-incrimination also applies to legal entities. For instance, if a company takes proper measures to mitigate the consequences of a crime after its commission in connection with other preventive measures previously in force within the organisation, this can help to diminish the penalty for the legal entity for a federal crime pursuant to the last paragraph of Article 11 bis of the FCC.

As explained in 2.2 Initiating an Investigation, there is no specific process for initiating a white-collar investigation and prosecution.

The Public Prosecutor is the authority in charge of the investigation, so the decision on who is being charged relies on said authority, which will depend on the information obtained during the investigation to determine who shall be responsible for the commission of the crime and, if said crime is indictable to a legal entity, the Public Prosecutor has sole discretion for determining if it will be indicted. 

As alternative resolution mechanisms, the NCCP provides the possibility for entering into a Compensation Agreement or a Conditional Suspension of the Process. For negotiating the termination of the conflict with the support of the authority, the National Law on Alternative Dispute Resolution Mechanisms on Criminal Matters (LNMASCMP) provides the mediation and conciliation to resolve the conflict on a voluntary basis.

The Compensation Agreement is between the victim and the perpetrator in cases where the crime is prosecuted as per the request of the victim (querella); it is connected with non-intentional (reckless) crimes or patrimonial crimes committed without violence. Such agreements set the terms under which the perpetrator will indemnify the victim and provide for the possibility that the payment of the indemnification is deferred in instalments and, once it is fulfilled, the criminal case is closed.

Depending on the stage of the criminal proceeding, the Compensation Agreement must be approved by the Public Prosecutor or the Criminal Judge.

On the other hand, the Conditional Suspension of the Process applies to crimes for which the arithmetic average does not exceed from five years, and provides a term no shorter than six months but no longer than three years in which the perpetrator shall comply with certain conditions that are established by the Criminal Judge for indemnifying the damage caused to the victim.

As explained in 1.5 Corporate and Personal Liability, legal entities can be indicted for the federal crimes provided in Article 11 bis of the FCC and in some States also there is a catalogue of indictable crimes for legal entities; in Mexico City, its Criminal Code states that legal entities can be indicted for all the crimes provided in it and in any other special local law.

Such indictable crimes include some of those detailed throughout section 3. White-Collar Offences; in addition, in some states legal entities can be indicted for fraud, breach of trust, embezzlement, fraudulent administration and theft, among others.

For instance, Article 388 of the FCC provides the fraudulent administration crime, which it is committed by the person responsible for managing or safeguarding third parties’ assets when altering contract terms or conditions, illicitly disposing or expending such assets, among other conducts, which causes damage or detriment to the owner of said assets for an own-benefit or that of third parties.

Bribery and influence peddling are considered as a criminal offence under Articles 221 and 222 subsections I and II of the FCC and in each of the 32 local criminal codes. Bribery of foreign public officials is considered as a federal crime sanctioned in Article 222 bis of the FCC. However, bribery between private parties is not considered as a crime even though Mexico is part of the United Nations Convention against Corruption.

A bribe is any promise made, or benefit or money illicitly given, to a public official in order that the public official executes or refrains from executing any act related with the duty inherent to their public official’s job, charge or commission.

The bribery can be committed by public officials who, directly or indirectly, request or receive a benefit or accept a promise, and by private individuals who promise or give the benefit to a public official even though the benefit is received by third parties linked to the latter, such as public official’s relatives, partners or third parties with whom the public official has business, professional or labour relationships, among others.

In connection with the bribery of foreign public officials, there are some particularities:

• the bribe is given with the purpose of obtaining or retaining an improver advantage during international business transactions; and
• unlike domestic bribery, it is also considered as a crime of bribery when the foreign public official manages or processes the resolution of an issue not related with the duties inherent to their job, charge or commission.

Crimes Involving Influence Peddling

Influence peddling by public officials

• A public official who promotes or manages, directly or through third parties, the illicit processing or resolution of public businesses unconnected to the duties inherent to their job, charge or commission.
• A public official who requests or encourages, directly or through third parties, any resolution or execution of any act that corresponds to a public official’s job, charge or commission, for their own or for a relative’s or a third party’s economic benefit with whom they are linked by friendship or business.

Influence peddling by private individuals

• A person who promotes the illicit conduct of the public official for managing or processing the resolution of public businesses unconnected to the duties inherent to the public official’s job, charge or commission.
• A person who, without authorisation to intervene in public business, affirms having influence before the public officials in charge of the decisions relating to such public business and intervenes in order to promote an illicit resolution in exchange of their own or for a third party’s benefit.

The influence peddling established as a criminal offence in the FCC does not include foreign public officials; it is only focused on domestic public officials.

Other Related Crimes Provided in the FCC

• Investing, selling, acquiring or carrying out any act with economic benefit, directly or indirectly, using privileged information known due to their job, charge or commission, when such information is not in the public domain regardless of the connection that such information has to their respective duties as a public official (Article 220, subsection II).
• Granting a remunerated job, charge or commission or service agreement or any other kind of agreement, while being aware that the duties or services are not going to be executed or the agreement will not be fulfilled (Article 215, subsection X).
• Illicitly granting:
1. concessions for providing public services or for exploitation, enjoyment or use of public domain goods (Article 217, subsection I, paragraph A); and
2. permits, licences, awards or authorisations of an economic kind (Article 217, subsection I, paragraph B).
• Using public funds for different purposes other than those for which they are intended or making an illicit payment (Article 217, subsection III).
• Increasing their wealth without proving the legitimate increase or origin of their goods and properties acquired when they were a public official (Article 224).

In the federal jurisdiction and in most of the local jurisdictions in Mexico, companies can be held liable for bribery and influence-peddling crimes.

As explained in 1.5 Corporate and Personal Liability, a company can be held criminally liable for a crime committed on its behalf, in its name, for its benefit or through the means provided by it and when there is a lack of due control within the organisation. Therefore, the obligation to provide a compliance programme derives from the due control that should be observed withing the organisation.

Even though for federal crimes and local crimes provided in certain local criminal codes there are no provisions that specify the content of a compliance programme, the following elements should be considered.

• A risk assessment should be carried out and documented, in which the criminal offences (risks) are identified, whether federal and/or local, in which the company can be held liable in accordance with its business activities, and also the controls that are in place for preventing them in determining the level of risk (residual risk) in which the company is exposed, so that proper measures are taken to mitigate such risks.
• There should be a person (commonly a chief compliance officer) in charge of the supervising compliance within the company.
• Policies, protocols or procedures to prevent the criminal activities should be in place.
• A clear and complete organisational and procedures manual should that clearly define the functions and responsibilities of each department of the company, and clearly specify the chains of command and leadership for each corporate structure.
• Guidelines for managing the financial resources should be implemented.
• There should be a code of conduct that is duly published and that every person in the organisation is aware of and that has systems and mechanisms for its effective implementation.
• There should be an obligation to report possible risks and non-compliance to the body in charge of monitoring the operation and observance of the prevention model. An adequate whistleblowing system should exist for both internal reports and reporting to the authorities.
• A disciplinary system should be established that adequately sanctions non-compliance with the prevention measures set out in the model.
• Periodic verification of the model and its eventual modification should take place when relevant violations of its provisions are revealed, or when changes occur in the organisation, in the control structure or in the activities taking place that make them necessary.

The Securities Market Law (SML), the Credit Institutions Law (CIL) and the Law to Regulate Financial Technology Institutions (LRFTI) provide, respectively, in Articles 192, 142 and 73 the securities and bank secrecies regulations; the operations carried out and the information of the clients should be kept confidential by the executives, officers and employees of the exchanges, dealers, brokers, financial institutions, crowdfunding institutions, among others. Failure to comply with such confidentiality can lead to criminal liability and penalties such as imprisonment from three to nine years (up to six years for information held by fintech companies).

The crimes regarding the securities market are provided in the SML from Articles 373 to 388, among such crimes are the following.

• Using privileged information for carrying out operations with securities whose price could be affected by said information and, as a result, a benefit is obtained or a loss is prevented. The imprisonment penalty ranges from two to 12 years depending on the benefit obtained or the loss prevented.
• Manipulating the securities market, such as artificially affecting the price or volume of the securities or their supply and demand. The imprisonment penalty ranges from two to 12 years depending on the benefit obtained or the loss prevented.
• Disseminating false information regarding securities or the financial, administrative, economical or legal situation of an issuer of securities, or hiding or omitting to reveal relevant information or events that should be disclosed pursuant to the SML. The imprisonment penalty ranges from five to ten years.
• Carrying out securities operations in Mexico without having authorisation. The imprisonment penalty ranges from five to 15 years.

The crimes connected with financial institutions and operations are provided in Articles 111 to 116 bis 1 of the CIL, among such crimes are the following.

• Carrying out fundraising activities without having authorisation for doing so, whether through deposits, loans or credit operations. The imprisonment penalty ranges from seven to 15 years and fines from 500 to 50,000 Units of Measurement and Update (UMA after its acronym in Spanish).
• Providing false information to obtain a credit if it causes a patrimonial loss to the financial institution. The imprisonment penalty ranges from three months to 15 years and fines range from 30 to 350,000 UMAs depending on the amount of the patrimonial loss.
• Granting or authorising credits while being aware that a patrimonial loss will be caused. Such crime is attributable to the executives, officers and employees of the financial institutions. The imprisonment penalty ranges from three months to 15 years and fines range from 30 to 350,000 UMAs depending on the amount of the patrimonial loss.
• Using the money obtained by a credit to another purpose other than the one agreed with the bank if it causes a patrimonial loss to the financial institution.
• Using or obtaining, indirect or directly, any service or financial product provided by financial institutions by impersonating another person or using a false identity.
• Illicitly using, obtaining, transferring or any other form of disposing of the economic resources of the financial institutions and of its clients. The imprisonment penalty ranges from five to 15 years and fines ranges from 500 to 30,000 UMAs.
• Submitting false information and documentation to the National Banking and Securities Commission. Such crime is attributable to the executives, officers and employees of the financial institutions. The imprisonment penalty ranges from two to 10 years and fines range from 500 to 50,000 UMAs

The crimes connected with fintech companies are provided in Articles 118 to 133 of the LRFTI, among such crimes are the following.

• Illicitly using obtaining, transferring or any other form of disposing of resources and virtual assets of the fintech companies and of its clients. The imprisonment penalty ranges from three to nine years and fines range from 5,000 to 150,000 UMAs.
• Carrying out transactions or activities with virtual assets that correspond to fintech companies without having authorisation to do so. The imprisonment penalty ranges from seven to 15 years and fines range from 5,000 to 150,000 UMAs.
• Providing false information and documentation to obtain the authorisation to operate as a fintech company. The imprisonment penalty ranges from seven to 15 years and fines range from 5,000 to 150,000 UMAs.

Tax fraud can be a federal or local crime depending on whether the affected party is the federal or a state treasury. Regarding the federal jurisdiction, the tax fraud crime is provided in Article 108 of the Federal Tax Code (FTC), which consists of omitting the payment of the total or partial outstanding contributions or obtaining a benefit to the detriment of the Federal Treasury, in both cases whether by deceiving the Tax Authority or taking advantage of an error.

Additionally, Article 109 of the FTC provides other crimes equivalent to tax fraud, as set out below.

• Reporting in the tax returns: (i) false deductions; (ii) lesser accruable incomes than the actual income received; (iii) or a lesser value of transactions or activities than those actually obtained, carried out or determined in accordance with the laws compared to their actual value or as determined by law.
• Failure to pay to the tax authorities, within the timeframe established by law, the amounts withheld or collected as contributions.
• Unlawfully benefiting from a subsidy or tax incentive.
• Simulating one or more acts or contracts to obtain an undue benefit to the detriment of the Federal Treasury.
• Failure to file definitive tax returns for more than 12 months, including annual returns required by tax laws, thereby neglecting the payment of corresponding taxes.
• Assigning tax effects to invoices that do not meet legal requirements.

Also, Article 113 bis of the FTC establishes as a crime issuing, selling or acquiring invoices that cover non-existent transactions, false or simulated legal acts.

The penalties for tax fraud are determined in line with the amount defrauded, so the imprisonment penalty may range from three months to nine years. Tax fraud can also be attributed to companies; therefore, their compliance programmes should prevent the crimes provided in Articles 108, 109 and 113 bis of the FTC, so it is advisable for taxpayers to implement a tax risk prevention programme.

Furthermore, tax disputes can lead to administrative proceedings that may result in the seizure of the taxpayer’s assets, and if fraudulent conduct involving deception is identified by the tax authority, criminal proceedings may also be initiated.

The Commercial Code (CC) establishes that companies and traders should keep their evidence of their operations and accounting records for a term of ten years. Also, the FTC establishes that legal entities’ accounting records shall be kept for tax purposes for a term of five years.

The FTC provides as a crime the registering of false or inaccurate information in the accounting records or records that are supported with false information, as well as having two or more accounting systems with different content. The penalty for the foregoing is three months to three years of imprisonment.

Organised crime such as cartels is prosecuted and sanctioned under the Federal Law against Organised Crime, which provides as a crime organised criminal activity when three or more people associate permanently or repeatedly with the intention of committing certain offences. Among such offences are:

• terrorism, financing of terrorism and international terrorism;
• crimes against health, such as the illegal possession of narcotics and small-scale drug trafficking;
• operations with illicitly obtained resources (money laundering);
• copyright crimes;
• stockpiling and trafficking of weapons;
• human and organs trafficking; and
• certain crimes related to hydrocarbons.

The mere formation of or participation in such criminal organisations is punishable per se, regardless of whether the intended crimes are committed or not, and any crime committed through organised crime is independently punished. The imprisonment penalty ranges from four up to 60 years and from 250 up to 37,500 fine-days.

On the other hand, in Mexico there is a Federal Economic Competition Law (FECL); however, the crimes connected to economic competition are set forth in Article 254 bis of the FCC, which considers it a crime when contracts, agreements or arrangements are entered into or made between competitive economic agents with the purpose of the following conduct, among others:

• fixing, increasing, agreeing or manipulating the sale or purchase price of goods and/or services;
• restricting the production, processing, distribution, marketing, acquisition or purchase of goods or the provision of services; and
• splitting the markets among competitors, whether by type of clients or providers, geographical areas or specific times.

For such crime the imprisonment penalty goes from five up to ten years imprisonment and 1,000 up to 10,000 fine-days.

The crimes of organised crime and economic competition are not attributable to legal entities.

Crimes related to consumers are provided in Articles 253 and 254 of the FCC, which establish an imprisonment penalty from three up to ten years and 200 up to 1,000 fine-days. Among the conducts considered as a crime, are the following.

• Related to necessary commodities needed for consumption or for the national industry:
1. hoarding, hiding, or unjustifiably refusing to provide the commodities to raise prices or disrupt consumer supply;
2. preventing or hindering free competition in production or commerce of commodities;
3. limiting production to keep commodities at an unfair price;
4. exporting commodities without the required permission from the relevant authority when necessary; and
5. preventing the process of production and distribution, or sale of electricity as a public service.
• Packing goods for sale in quantities less than indicated, outside the permissible amounts, or without indicating the official maximum retail price when required.
• Delivering goods in quantities less than agreed when the measuring is carried out during the transaction.
• Altering or reducing the properties that goods or products should have.
• Wrongful destruction of commodities, agricultural or industrial products, or means of production, to the detriment of national consumption.
• Publishing fake news that causes disruptions in the domestic market, whether concerning goods, currency or bills of trade.
• Intentionally exporting national goods of inferior quality or in smaller quantities than agreed.

Cybercrimes and computer fraud are not regulated in a specific criminal law and may be considered as local or federal crimes depending on the jurisdiction rules. For instance, if a cybercrime or computer fraud is committed abroad, as explained in 1.4 Extraterritorial Reach and Cross-Border Co-operation, the FCC will be applicable. Otherwise, the local criminal codes will apply.

Computer Fraud

The FCC does not provide a specific crime of computer fraud so the generic fraud crime provided in Article 386 of the FCC will be applicable when a benefit is obtained or a loss is caused to the victim as a result of a deception or taking advantage of a misbelief of the victim.

Cybercrimes

On the other hand, the unauthorised modification or destruction of information in computer systems is sanctioned with imprisonment of six months to two years and fines from 100 to 300 fine-days. Penalties are more severe when the information affects national or public security systems, reaching up to ten years of imprisonment and fines of 500 to 1,000 fine-days (Articles 211 bis 1 and bis 2 of the FCC).

Under the CIL, accessing or altering banking technology without legitimate cause or consent, with the intent to obtain economic resources or confidential information, will be sanctioned with imprisonment from three to nine years and fines ranging from 30,000 to 300,000 UMAs (Article 112 quater). Increased penalties apply if the offender is a bank official or has committed the crime within two years of leaving such a position (Article 112 quintus).

Similarly, under the LRFTI, unauthorised access to the electronic systems of fintech companies or entities operating with innovative models is penalised with imprisonment from three to nine years and fines ranging from 5,000 to 150,000 UMAs (Article 132). This regulation targets individuals who access or manipulate these systems without proper authorisation, aiming to protect the security and confidentiality of financial technologies.

Regarding personal data, the Federal Law on the Protection of Personal Data Held by Private Parties (FLPPDHPP) establishes it a crime when an individual authorised to process data causes a breach in the security of the databases under their custody with the intent of profit-seeking. This crime is sanctioned with imprisonment from three months to three years.

When the personal data is processed through deceit with the intention of earning a profit taking advantage due to a misbelief by the data owner or authorised person transferring the information, this is sanctioned with six months up to five years of imprisonment.

In both cases regarding personal data, if such information is sensitive, the penalties will be doubled.

Trade Secrets

The Federal Law for the Protection of Industrial Property (LPIP) establishes the crimes regarding trade secrets in subsections III to VI of Article 402 – which, in general terms, are sanctioned with two to six years of imprisonment and fines of 2,000 to 500,000 UMAs – are the disclosure, misappropriation, use or acquisition of a trade secret, without right and consent, with the intention of obtaining a benefit or for causing damage to the trade secret owner or holder.

If the confidential information is not considered a trade secret, the FCC establishes in Article 211 as a crime the disclosure of a secret or confidential communication without authority and consent causing damage. 

The FFC establishes the crime of smuggling in Articles 102, 103 and 105, under which the following conducts among others are sanctioned.

• Import or export merchandise or goods whether:
1. omitting the total or partial payment of the compensations or countervailing duties that shall be paid;
2. without the necessary permits by the relevant authority when they are required; or
3. their importation or exportation is prohibited.
• In addition to the foregoing, it is considered to be smuggling when:
1. temporary imports are made in accordance with Article 108 of the Customs Law without having maquiladora or export programmes authorised by the Ministry of Economy, of merchandise not covered by the authorised programmes;
2. goods are imported as supplies that due to their characteristics of a finished product are no longer susceptible to being subjected to processes of elaboration, transformation or repair provided that such conduct has caused damage to the Federal Treasury;
3. the merchandise provided for in a maquiladora or export programme continues to be temporarily imported when it is no longer in force or when the merchandise provided for in a maquiladora or export programme continues to be temporarily imported from a company that has changed its name or company name, has been merged or divided and has been failed to present the corresponding notices in the federal taxpayers registry and to the Ministry of Economy;
4. merchandise imported temporarily from maquiladoras or companies with export programmes authorised by the Ministry of Economy is received by companies that do not have said programmes, or if they do, the merchandise is not covered by said programmes or temporarily imported merchandise is transferred with respect to which the term of temporary import has expired; and
5. the return of the merchandise imported temporarily is omitted under Article 106 of the Customs Law.
• Transferring, trading, acquiring or possessing, by any means, foreign merchandise that is not for personal use, without the documentation proving its legal stay in the country, or without prior authorisation of the relevant federal authority, or without labels or seals in the case of containers or packages, as applicable, that contain alcoholic beverages or whose importation is prohibited.
• Possession of foreign goods whose trade is prohibited.
• Failure to carry out the return of temporarily imported vehicles to their country of origin or the return to the border zone or region in the case of temporary vehicle imports.
• Transforming goods that should have been maintained in the same condition for purposes other than those authorised in the maquila, or export programmes granted.
• Using goods subject to maquila or export programmes for purposes other than the regime under which their importation was carried out.
• Submitting false or altered documentation to the customs authorities.

Pursuant to Article 104 of the FFC, the crime of smuggling is sanctioned with imprisonment from three months to nine years. Such penalty will depend on the amount of the contributions or countervailing duties omitted, or if it relates to prohibited goods; the penalty could increase from three months to three years if the smuggling is aggravated.

Concealment is provided in the FCC and in the local criminal codes. In general terms, the following conducts, among others, are considered as concealment and, in the case of the FCC, are sanctioned with three months to three years of imprisonment and 15 to 60 fine-days:

• acquiring, receiving or concealing the proceeds of a crime, being aware of their origin and with a profit-seeking intention;
• providing any form of assistance or co-operation to the perpetrator of a crime, with knowledge of the criminal act, after its commission;
• engaging in activities that facilitate the concealment of the perpetrator, the instruments, objects or proceeds of the crime, or otherwise impeding the investigation;
• failing to render assistance to the authorities upon request, during a crime investigation;
• illegally altering, modifying or disturbing the crime scene, evidence or traces of the criminal act; and
• obstructing the investigation of the criminal act or aiding the accused in evading justice.

It is generally improbable for the same individual to be held criminally responsible for both the predicate offence and the crime of concealment, since the perpetrator is not compelled to self-incrimination.

Legal entities can be indicted for concealment.

In general terms, anyone who conspires or assists another in committing a crime can held responsible, depending on the contribution to the criminal act, including:

• those who plan or prepare its commission;
• those who intentionally incite another to commit the crime;
• those who intentionally assist or aid another in its commission; and
• those who, after the crime has been committed, assist the offender in the fulfilment of a promise made prior to the crime.

Money laundering is classified as an autonomous crime in Mexican legislation, independent of any prior crime, as specified in Article 400 bis of the FCC.

The crime involves resources, rights or assets of any nature derived from illicit activities or representing profits from criminal acts, when their legitimate origin cannot be proved.

The following scenarios constitute money laundering:

• acquiring, managing, transferring or handling resources, rights or assets, within or outside the country, knowing they derive from illicit activities; and
• concealing or attempting to hide the nature, origin or details of resources, rights or assets, with knowledge of their illicit origin.

Penalties for the crime of money laundering range from five to 15 years of imprisonment and from 1,000 to 5,000 fine-days.

If the crime is committed by an advisor, administrator, officer, employee, representative or service provider of any entity subject to anti-money laundering regulations as defined by the Federal Law for the Prevention and Identification of Transactions with Illicit Resources (“Anti-Money Laundering Law”), the penalties may be increased by one third to one half.

In Mexico, money laundering is also addressed from an administrative perspective. The Anti-Money Laundering Law identifies a series of activities classified as “vulnerable activities,” and individuals engaged in those activities are required to fulfil specific obligations, including:

• identifying their clients and users involved in vulnerable activities;
• requesting information from clients about their activities or occupation;
• requesting information regarding the existence of the beneficial owner and, if applicable, providing official documentation to verify their identity;
• protecting and safeguarding the information and documentation supporting vulnerable activity; and
• submitting notifications to the Ministry of Finance and Public Credit as stipulated by the law.

Individuals engaged in vulnerable activities who fail to comply with the obligations set forth by the Anti-Money Laundering Law may be subject to fines of up to 10,000 UMAs.

The relevant authority for enforcing the Anti-Money Laundering Law is the Financial Intelligence Unit, which operates under the Ministry of Finance and Public Credit, and Mexico’s Attorney General’s Office is responsible for investigating such crime when it falls under its jurisdiction as a federal crime.

In general terms, the primary defence for a company is having a criminal compliance programme in place, as, to indict a legal entity, it must be proven that there was a lack of proper controls within organisation that led or facilitated the commission of the crime commission by its shareholders, representatives, officers, executives, employees or any other person connected with the organisation.

Therefore, the mechanism to ensure such control exists is a criminal compliance programme that identifies the criminal risks to which the organisation is exposed, as well as the controls through which these risks are managed, having evidence of all of these.

There are no industries or sectors exempt from white-collar offences; however, some white-collar crimes are de minimis exceptions.

For instance, the crime of concealment will not be punishable when there is a failure to render assistance to the authorities upon request during a crime investigation if the perpetrator under investigation is an ascendant or descendant relative.

Likewise, Article 248 of the Criminal Code of Mexico City provides that no penalty will be imposed for fraud and fraudulent management, among other crimes against property, when:

• the profit, damage or loss does not exceed the value of 50 UMAs;
• the crime was committed without violence;
• it is the first time the perpetrator commits a crime; and
• the victim is indemnified before the Public Prosecutor prosecutes the case.

Similar to a Plea Agreement, Mexico has the Abbreviated Procedure, which is an expedited way of concluding the criminal proceeding upon payment of indemnification to the victim, the accused admitting their responsibility for the charges presented by the Public Prosecutor, renouncing to a trial and accepting to be judged with the evidence collected as of that moment.

The benefit of entering into an Abbreviated Procedure is that the penalties are reduced.

Also, in some cases the Public Prosecutor has discretional power to not prosecute and the guidelines for doing so are issued respectively by Mexico’s Attorney General’s Office and each of the 32 state Attorney General’s Offices.

For instance, a co-perpetrator of a white-collar crime committed without violence can decide to effectively co-operate with the Public Prosecutor whether it is for the prosecution of a worst criminal offence than the one for which they are being prosecuted or if it is in connection with the same crime.

If the co-operation is in relation to the same crime, the perpetrator’s contribution to such crime shall be less than one of the other perpetrators. Also, the perpetrator shall agree to appear at the trial as a witness.

In that regard, the Public Prosecutor can decide to dismiss the case against the perpetrator who decides to co-operate.

In some cases for crimes committed against property, a leniency measure involves the perpetrator indemnifying the victim before definitive judgment is issued, so the penalty is reduced.

If a person denounces a crime or testifies in connection with it, the Federal Law for the Protection of Persons that Intervene in Criminal Proceedings applies. Most of the states in Mexico also have a law in which the protection of persons and witnesses in connection to local criminal proceedings is provided.

Such federal law is enforced by Mexico’s Attorney General’s Office and applies to any person that could be in danger for intervening in criminal proceedings as well as to the witnesses who voluntarily accept to provide effective assistance for the prosecution of the criminal offence.

The protective measures for such individuals are focused on protecting the physical, psychological, patrimonial and family aspects. Among such measures are the constant surveillance by the relevant authority, forbidding the disclosure of the individual’s identity, and the assurance of the individual being safely removed to another place when needed, or, in certain cases, being granted a new identity when strictly necessary due to potential risks.

There are no general incentives for whistle-blowers reporting white-collar crimes.

Additionally, an example of specific incentives for whistle-blowers can be found for economic competition crimes in Article 254 bis of the FCC in connection with Article 103 of the Federal Economic Competition Law, according to which there will be no criminal liability for the economic agent if:

• it is the first economic agent involved in a monopolistic practice to provide sufficient supporting evidence that allows the Federal Economic Competition Commission to initiate an investigation;
• the economic agent co-operates throughout the investigation and in the trial; and
• the agent undertakes proper actions to avoid engaging in further unlawful practices. 

Lastly, in Mexico there is no regulation in which guidelines for whistle-blowing systems in the companies are provided, such as the safeguards or internal procedures to be implemented; however, ISO 37002:2021 (Whistleblowing management systems) can be used as a guideline for establishing internal procedures and strategies for protecting and supporting whistle-blowers.