Understanding the Freezing of Bank Accounts by the FIU: The Jurisprudential Doctrine of the SCJN

The fight against money laundering and terrorist financing has caused a profound transformation in the legal tools through which the Mexican State intervenes in the financial system. Within this context, one of the most relevant instruments is the freezing of bank accounts ordered by the Financial Intelligence Unit (FIU) through the so-called list of blocked persons established in the Credit Institutions Law (LIC). This mechanism has been the subject of a broad constitutional debate in Mexico, mainly due to its direct impact on the right to property, the right to a hearing, and the legal certainty of the governed. In recent years, the National Supreme Court of Justice (SCJN) has built a complex jurisprudential line around the legal nature of this measure and the constitutional limits of its application.

The discussion reached its peak with the introduction of Article 116 Bis 2 of the LIC, published on March 11, 2022, in the Official Gazette of the Federation (DOF), which establishes a subsequent hearing procedure for individuals included in the list of blocked persons. This article was challenged before the SCJN by several members of the Senate of the Congress of the Union through the unconstitutionality action number 58/2022, which was resolved in the session of April 6, 2026, by the new SCJN.

In said session, the new SCJN declared Article 116 Bis 2 of the LIC constitutional, allowing the freezing of accounts to be ordered administratively and, subsequently, be challenged by the affected parties. "The project of the executory judgment essentially argues that the inclusion in the list of blocked persons constitutes a precautionary measure adopted by an empowered administrative authority and not a sanction of a criminal nature."

This article briefly analyzes the jurisprudential evolution of the SCJN on this matter, with special attention to the most relevant precedents published in the Federal Judicial Weekly (SJF), including amparo reviews numbers 1214/2016, 806/2017, 1231/2017, 1181/2017, 124/2018, 666/2017, and 1150/2017, the jurisprudence numbers 2a./J. 46/2018 (10a.) and 2a./J. 87/2019, and, finally, the project approved in the unconstitutionality action number 58/2022.

Regulatory Framework for the Freezing of Bank Accounts in Mexico

The legal basis for the freezing of bank accounts is found in Article 115 of the LIC, which empowers the Secretariat of Finance and Public Credit (SHCP) to issue a list of blocked persons for the purpose of preventing operations with resources of illicit origin. Under this provision, credit institutions (IC) must immediately suspend the execution of operations with clients included in said list, which implies the immobilization of the resources deposited in their accounts. The logic of this mechanism responds to international standards in the prevention of money laundering (AML), particularly the recommendations of the Financial Action Task Force (FATF), which require the existence of effective measures to freeze assets linked to illicit activities.

However, the design of this numeral and, subsequently, Article 116 Bis 2 of the LIC raised constitutional questions related to three aspects: (i) the possible invasion of FIU powers that correspond exclusively to the Public Ministry (MP)—the investigation of crimes—; (ii) the impact on the right to property; and, (iii) the absence of prior judicial control. These issues were progressively addressed by the Supreme Court through various precedents, as set out below.

The First Major Precedent: Amparo in Review 1214/2016

The starting point of the constitutional criterion on this matter was amparo in review number 1214/2016, resolved by the now-defunct First Chamber of the SCJN on October 4, 2017, under the presentation of Minister Jorge Mario Pardo Rebolledo. In this case, the constitutionality of Article 115 of the LIC was analyzed, concluding that the provisions allowing the administrative freezing of bank accounts invaded the powers of the MP established in constitutional Article 21, by virtue of the fact that the Chamber argued that the Constituent expressly established that it corresponds solely and exclusively to the MP the power to investigate crimes and conduct criminal investigations; it is worth noting that in this precedent (AR 1214/2016), there were several concurring and dissenting votes on the matter that are also worth taking into account.

Thus, it was considered that allowing an administrative authority to order the freezing of bank accounts for possible crimes implied an invasion of competence in criminal matters that corresponds solely and exclusively to the MP. Consequently, the amparo was granted to annul the inclusion of the complainant in the list of blocked persons. This precedent generated a great legal debate, as it was thought to severely limit the capacity of the SHCP and the FIU to order financial freezes, seemingly leaving the path open for illicit conduct.

The Jurisprudential Shift

Following the interpretation of the extinct First Chamber of the SCJN previously outlined, it was nuanced by the extinct Second Chamber (2aS) of the SCJN when resolving amparo in review number 806/2017, in the session of February 21, 2018, under the presentation of Minister Eduardo Medina Mora. In this executory judgment, the 2aS maintained that: "the freezing of bank accounts does not constitute a criminal sanction, but a precautionary administrative measure aimed at protecting the financial system."

This decision was reiterated in several precedents, among them the amparo reviews numbers 1150/2017, 1181/2017, 1231/2017, and 124/2018, which consolidated a new constitutional understanding on the subject. This gave rise to jurisprudence number 2a./J. 46/2018 (10a.), entitled: "BANKING ACTS, OPERATIONS OR SERVICES. THEIR FREEZING IS CONSTITUTIONAL WHEN CARRIED OUT TO FULFILL INTERNATIONAL COMMITMENTS (CONFORMING INTERPRETATION OF ARTICLE 115 OF THE CREDIT INSTITUTIONS LAW)."

Thus, the 2aS maintained that the inclusion in the list of blocked persons has an administrative nature and responds to international obligations of the Mexican State, since it constitutes a preventive measure. This criterion undoubtedly marked a relevant difference with respect to the position previously adopted by the First Chamber.

The Suspension of the Freezing of Bank Accounts in the Amparo Trial

The doctrinal consolidation on this topic occurred with jurisprudence number 2a./J. 87/2019, issued by the extinct 2aS of the SCJN, entitled: "PROVISIONAL SUSPENSION. RULES FOR ITS GRANTING WHEN THE CLAIMED ACT IS THE FREEZING OF BANK ACCOUNTS ATTRIBUTED TO THE FINANCIAL INTELLIGENCE UNIT OF THE SECRETARIAT OF FINANCE AND PUBLIC CREDIT."

In this criterion, it was established that the freezing of bank accounts can be challenged through the amparo trial, even with the possibility of obtaining the suspension of the claimed act, recognizing that the measure directly affects the patrimonial sphere of the governed. Therefore, it is susceptible to constitutional control, with the possibility of granting the provisional suspension in the amparo trial against the freezing of bank accounts.

This implies two fundamental consequences. The first is that the freezing of bank accounts constitutes an act of authorityfor the purposes of the amparo trial; and second, that amparo judges can grant the suspension of the immobilization of resources to avoid irreparable harm. Thus, this jurisprudence sought to balance the effectiveness of the AML system with the protection of fundamental rights.

Therefore, the suspension of the freezing of bank accounts was analyzed and defined in the contradiction of thesis number 78/2019, resolved on June 19, 2019, by the 2aS of the SCJN, which gave rise to the aforementioned jurisprudence 2a./J. 87/2019 (10a.). It determined that amparo judges can grant suspension to allow the use of indispensable resources for the subsistence of the complainant or for the operation of a company. The criterion recognizes that financial blocking can generate severe economic impacts, which is why judicial control must guarantee a balance between crime prevention and patrimonial protection.

Legal Nature of the Freezing of Bank Accounts

Based on the described jurisprudential evolution, it is possible to identify the currently dominant criterion in the new SCJN, as it involves an unconstitutionality action. Thus, the current jurisprudential doctrine consists of pointing out that the freezing of bank accounts is a preventive administrative measure and does not constitute a criminal sanction; its purpose is to protect the financial system and can be challenged through an amparo trial. This implies a significant change regarding the initial posture adopted by the extinct First Chamber of the SCJN in amparo in review number 1214/2016, commented on above.

Therefore, with this jurisprudence of the new SCJN, it is recognized that the State requires agile instruments to combat illicit financial operations in a context of growing sophistication of organized crime, although experts point out that illicit activities involving dirty and black money, money laundering, and terrorist financing rarely use the national financial system.

Constitutional Tensions

Despite the consolidation of this criterion, the measure continues to generate relevant debates both in legal doctrine and in the business sector, primarily because, without prior judicial control, it weakens legal certainty and the confidence to invest in Mexico. Furthermore, among the main concerns is the fact that the freezing of accounts can significantly affect people's assets, especially if prolonged over long periods, since there are no legal provisions or clear rules for the FIU's actions.

Another concern is the legal certainty regarding the inclusion of individuals in the list of blocked persons, as this depends on the administrative assessment of simple financial indications. This can lead to errors or arbitrary acts, given that there is no regulatory framework for the FIU's actions, and the subsequent judicial control through the amparo trial is now severely weakened in this regard (suspension of the act).

Conclusion

The change of criterion by the new SCJN responds to a reinterpretation of the legal nature of the freezing of accounts, shifting from a potentially criminal measure to a preventive administrative measure, the solution of which raises relevant tensions regarding fundamental rights, especially regarding the rights to property and a prior hearing.

In this context, the jurisprudential evolution of the SCJN regarding the freezing of bank accounts reflects the structural tension between two fundamental values of the constitutional State: the effectiveness in preventing financial crime and the protection of fundamental rights. From the first amparo trial to the recent resolution of the unconstitutionality action, the new SCJN has navigated this issue by recognizing the legitimacy of the administrative freezing of bank accounts as a tool for money laundering prevention without judicial control.

However, this model now demands high standards of substantiation and motivation instead of prior judicial control to avoid abuses and/or arbitrary acts in the FIU's actions, which without them could even be used as a means of political control against non grata individuals of the federal Government.

Ultimately, the challenge is to ensure that the fight against financial crime to combat money laundering and terrorist financing—in our case, the organized crime of drug trafficking—is carried out without eroding the fundamental rightsand constitutional guarantees of the people who trust in living in a Constitutional State of Law in Mexico.