Our legislation contemplates a series of requirements that have the purpose of guaranteeing the right to a hearing and due process. In this way, the governed are not left in a state of defenselessness in the face of proceedings involving the exercise of the punitive power of the State.
The notification of the commencement of proceedings is the first essential formality of a jurisdictional process. Through the summons, the authority informs the defendant about: (i) the existence of a lawsuit filed against him, (ii) the complaint and documents annexed thereto; and (iii) the time limit for answering the claim.
Recently, the First Chamber of the SCJN has issued jurisprudence in which it is evident that it is important that the summons to trial be carried out in strict compliance with all the formalities provided by law.
In one of its most recent criteria, the First Chamber held that, in order to ensure that the defendant had the possibility of fully exercising its right of defense, it is necessary that it had certain and complete knowledge of the benefits claimed and of the documents on which the plaintiff based its action. In this sense, the SCJN considered that the summons is valid only if the notifier certifies in the corresponding record that he delivered to the defendant the documents that were attached to the complaint and describes them. According to the First Chamber, in the event that the notifier did not specify in the record corresponding to the summons which were the documents exhibited together with the complaint, with which the defendant was served, then, considering that the lack of summons or its deficient practice constitutes the most important procedural violation, the proceeding must be annulled and re-delivered in order to avoid leaving one of the parties to the lawsuit in a state of defenselessness.
In another jurisprudence, the First Chamber considered that the fifth paragraph of article 1070 of the Commercial Code is unconstitutional and violates the guarantees of legality and due process. The aforementioned article establishes that the judge may order the summons by edicts of the defendant, without conducting an investigation of his domicile, in the event that the summons has been attempted to be served in the place agreed upon in the document that is the basis of the action and this proves to be incorrect or not in force. The SCJN pointed out that it is the obligation of the courts to investigate as far as possible the correct address of the defendant before ordering the service of process by edicts, since such notification must be the last resort to comply with the obligation to inform the defendant of the existence of a lawsuit filed against him.
Roberto Altamirano
Associate
