Federal Judge Francisco Javier Sarabia granted the injunction to former teacher's union leader Elba Esther Gordillo Morales after concluding that the Attorney General's Office (PGR) made a string of errors at the preliminary investigation, probably due to the haste with which the investigation was discharged.
The judgment of the Fourth District Court of Criminal Protection [amparo, injunction] for the Federal District, of which La Jornada has a copy, reports that from February 13-22, 2013--that is, in nine days, which is practically unfeasible--the PGR initiated and completed an "exhaustive investigation" against Gordillo, who was accused of organized crime and money laundering. In most investigations, the police take at least two weeks to produce a first report, but the Gordillo case was the exception.
For example, in just twenty-four hours on February 13-14, an agent of the Attorney General's office initiated the inquiries and issued a request for three officers from the Federal [Investigative] Police to perform a meticulous investigation.
In one day, the designated agents gave a detailed report on alleged unusual bank transactions of Gordillo, for whom they already had ready accounting audits that referred to alleged money laundering, in addition to an opinion by the Tax Administration Service (SAT) which showed unusual financial transfers.
The first two errors pointed out by Judge Sarabia are formal*. One has to do with the lack of a complaint by the Secretariat of the Treasury and Public Credit (SHCP); the complaint is an essential legal requirement for proceeding to any arrest warrant for crimes committed inside the Mexican financial system, such as money laundering. It's not that Treasury had not filed a complaint against Gordillo, but that from Sarabia's perspective, the complaint did not comply with the formalities ordered by criminal law and jurisprudence for such criminal complaints.
Close to 10:00 PM on February 13, Alonso Israel Lira Salas, assistant general director for Legal Processes of the SHCP Financial Intelligence Unit, went to the premises of the Deputy Specialized Attorney for Investigation of Organized Crime (SEIDO) to file a complaint against the teacher, but he was identified with a provisional badge that showed neither his name nor his position [title]. Jurisprudence of the Supreme Court of Justice of the Nation (SCJN) requires officials from legal areas to present current official identification upon appearing before any prosecutorial authority.
Deficiencies
Another formal error incurred by the federal authority was that the SHCP neglected to authorize a confirmation of the money laundering offense alleged against Elba Esther Gordillo. Just like the complaint, the confirmation is an essential requirement for exercising criminal action against a suspect of that crime.
As stated in Judge Sarabia's ruling, there were also fundamental errors. The Judge ruled that the detention order, issued on March 4 by Judge Alejandro Caballero Vértiz, has serious deficiencies and is not properly reasoned legally, since it does not specify the circumstances surrounding the actions of Gordillo and her co-defendants, José Manuel Díaz Flores and Isaías Gallardo Chávez, in the alleged events.
Sarabia decided that
"in making the order of imprisonment for the crime of violation of Federal Law Against Organized Crime, the complaint resolution lacks formal requirements, which violate Article 16 of the Constitution to the detriment of the plaintiffs, given the vagueness and characteristics of the alleged crime in terms of its elements, and the accuracy of the conduct attributed to each of the defendants having to do with the circumstances of place, time and manner of execution of the crime," explained the Council of the Federal Judiciary.
"The same also applies to the formal indictment for the crimes of money laundering and organized crime, given that they are composed of various elements that require that the facts be precisely related to one or the other charge, as well as the actions of the plaintiffs, which results in basic questions regarding the first charge."Spanish original
*Mexico's legal system is based on civil law. See Mexico's Legal System: The Basics.