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Judge questions circumstances surrounding arrest of teachers union leader Elba Esther Gordillo.

In April of this year, President Enrique Pena Nieto's administration published a decree in Mexico's daily register (Diario Oficial) that clarified and expanded the use of the recurso de amparo (recourse for protection), which strengthens constitutional protections under the law for a person accused of a crime. The changes, approved by the Senate in March and enacted by the Pena Nieto government a month later, included modifications to Articles 103 and 107 of the Mexican Constitution. The modified amparo law replaced the version published in January 1936.

The revised measure adjusts and modifies the amparo process to reflect contemporary practices and strengthen the faculties of the high court (Suprema Corte de Justicia de la Nacion, SCJN) in guaranteeing the protection of individual rights, said proponents of the change.

One of the first big tests of the modified law came in September, when Federal Appeals Court Judge Francisco Sarabia Ascencio granted an amparo to Elba Esther Gordillo--the deposed leader of the teachers union (Sindicato Nacional de Trabajadores de la Educacion, SNTE)--who was arrested in February on charges of corruption, money laundering, and racketeering (SourceMex, March 6, 2013).

In issuing the ruling, Judge Sarabia agreed that the manner in which the Pena Nieto administration built the case against Gordillo might have violated her constitutional rights. The ruling does not guarantee Gordillo's immediate release but requires the government and the courts to re-examine her case.

Judge cites procedural errors in Gordillo's arrest

In his ruling, Sarabia cited procedural errors by the Procuraduria General de la Republica (PGR), including an inconsistency in the sequence of events that led to Gordillo's arrest. For example, he noted that the PGR requested that Gordillo be taken into custody before presenting supporting evidence (averiguacion previa) for the action. Gordillo's arrest was requested on Feb. 20, while the evidence came on Feb. 21 and Feb. 22.

In responding to Sarabia's ruling, the PGR countered that the judge mistakenly considered "irrelevant matters" above and beyond the proof and facts required in the judicial process." The federal prosecutor's office also argued that the judge's decision was against the public interest.

Still, Sarabia's strongest criticism was directed at Judge Alejandro Caballero Vertiz, who granted the arrest request without having the proper evidence regarding the government's money-laundering and racketeering charges against the SNTE leader.

Sarabia said Judge Caballero failed to explain what evidence the PGR presented that led him to conclude that Gordillo's earnings were the result of illegal activities. Sarabia said that Caballero simply used data presented by the PGR to justify the arrest, instead of examining whether the information provided the necessary justification to charge Gordillo with the crimes for which she was accused. Furthermore, Sarabia criticized his colleague for using the exact same criteria from the PGR to justify each of the two major charges, one for money laundering and the other for racketeering.

Gordillo's attorney, Marco Antonio del Toro, said Sarabia's ruling opens the door for the SNTE leader to be set free in three months, pending an appeal that will be heard in October.

Several columnists agreed that the PGR and the court that accepted the charges might have overreached in their zealousness to detain Gordillo, also known by her nickname of la maestra. "In my opinion, the judicial actions directed against Elba Esther Gordillo were corrupted from the start. These were not judicial conclusions. They were political actions," columnist Armando Fuentes Aguirre Caton wrote in the Mexico City daily newspaper Milenio.

Given the violation of Gordillo's individual rights, said Fuentes Aguirre Caton, the government has no choice but to allow the SNTE leader to go free. "In this case, la maestra must be set free despite any anger on social media and universal rejection [to this action]," said the Milenio columnist. "Justice must be served. Otherwise, all of us will be subject to similar abuses and similar risks."

Syndicated columnist Sergio Sarmiento pointed to some inconsistencies in the PGR's case. While authorities have accused Gordillo of conducting "operations with resources of illicit origin," the columnist noted that all the money in question came from the SNTE, which had not presented any legal complaints against the former leader for misuse of union funds. "It would have been easier to charge her with tax evasion, since she never declared the money that she received from the union," said Sarmiento. "The case did not contain an accusation of tax fraud."

Columnist Martin Moreno directed his criticism to the Ministerio Publico Federal, the judicial agency that compiled the charges against Gordillo. "The amparo gained by the defense of the powerful SNTE leader is a red flag on the technical deficiencies of the Ministerio Publico Federal, and, because of this, we could soon see Gordillo back on the street," Moreno wrote in the Mexico City daily newspaper Excelsior. "If Gordillo were to be released from prison, this would represent a major setback to the Pena Nieto government, and especially the PGR."

Legislative leaders from Pena Nieto's governing party agreed that Sarabia's ruling was proper. "We live in a country that has a justice system that must be respected. The rulings from the Supreme Court, especially in recent years, are geared toward guaranteeing due process," said Sen. Manlio Fabio Beltrones, floor leader for the Partido Revolucionario Institucional (PRI) in the upper house.

Government appeals

Alluding to a planned appeal of Sarabia's ruling, Beltrones and other party leaders expressed hope that the PGR could put together a more solid case. "I have full confidence in the PGR and the work it has performed to date," said PRI Sen. Hector Gutierrez de la Garza, who is Beltrones' deputy. "I am sure that the matter will be clarified. What is obvious is that the citizens are not going to stand for any impunity in any case."

Some legislators likened the decision on Gordillo to the recent case of Florence Cassez, a French citizen who had been accused of kidnapping. The courts ordered Cassez's release because authorities mishandled the arrest process, thus violating her constitutional rights (SourceMex, Jan. 30, 2013).

Critics also pointed to the case of Tijuana exmayor Jorge Hank Rhon, arrested in July 2011 on charges of involvement in organized crime and weapons violations (SourceMex, June 22, 2011). Hank Rhon was released a few days later because authorities were unable to make the charges stick (SourceMex, Aug. 10, 2011).

"It's a part of the process. Whenever there are omissions or errors, there can be all types of consequences, as we saw in the case of Florence Cassez," said PRI Sen. Omar Fayad Meneses.

The center-left opposition also weighed in on the situation. "Recent precedents show that the authorities carrying out an investigation need to follow due process. ... This doesn't just happen at the federal level, but in the judicial system all over the country," said Sen. Miguel Barbosa Huerta, floor leader of the Partido de la Revolucion Democratica (PRD) in the upper house.

"The only thing that is left to do is to release Gordillo," said PRD national president Jesus Zambrano. "This would be a terrible setback for the procuration of justice."

The PGR, meanwhile, was working to put together new evidence to present to the courts as part of its appeal of Sarabia's ruling, including a complaint against Gordillo by a unit of the Secretaria de Hacienda y Credito Publico (SHCP) related to financial crimes. That SHCP complaint, for some reason, was left out of the original case.

The courts were scheduled to resume a review the evidence against Gordillo on Oct. 3. Gordillo was not expected to be present at the hearings and would be represented by her attorney Marco Antonio del Toro, who will also have the opportunity to question officials about the charges presented against his client.

In an earlier interview with the national radio network Radio Red, Del Toro said he accepted the appeal filed by the PGR as part of the judicial process. "We anticipate a period of three or four or five months for the appropriate court to issue a definite resolution on this case of amparo," he said. "Ultimately, the result that we are seeking is for maestra Elba Esther Gordillo be set free and to prove that she did not engage in the illicit activities for which she has been charged."
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Author:Navarro, Carlos
Publication:SourceMex Economic News & Analysis on Mexico
Date:Oct 2, 2013
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