y Jaime Cancino León
Abogados
Paseo de las Palmas 1355, Lomas de Chapultepec, C.P. 11010 México, D.F.
Teléfonos: 55-20-21-77, 55-40-11-24
COMPLAINT: We are filing a COMPLAIN as defense attorneys of Mr. ALEXANDER SPATZ against the FEVIMTRA
NATIONAL COMMISSION ON
HUMAN RIGHTS
RICARDO FRANCO GUZMÁN, JAIME CANCINO LEÓN y CÉSAR ANTONIO PRIETO PALMA:
Present this COMPLAIN against the FEVIMTRA, located in Río Elba17, Colonia Cuauhtémoc, in Mexico City in the following terms:
FACTS
Attorney María de Lourdes Palacios Espinosa, Director of Investigations of Human Trafficking, "in functions as Prosecutor of the Federation", of the FEVIMTRA, initiated a preliminary investigation PGR/FEVIMTRA/TRA/023/2009, on the 23 December 2009, in the agreement below transcribed:
"AGREEMENT OF INITIATION
"In Mexico City, 23 December 2009, the undersigner Ms. María de Lourdes Palacios Espinosa, Director of Investigations of Human Trafficking in functions as Public Prosecutor, attests that:
"Mr. Hernando Franco Bernal, In charge of Detainees, Localizations and Disappeared People of the General Consulate of Colombia in Mexico is here and presents BLANCA INÉS GARCÍA BERNAL, Colombian, so that she can FILE A COMPLAIN for the crime of human trafficking commited against her. STATING Blanca Inés García Bernal that she is colombian and that in her country on the month of november last year through the religious organization of the Sea was recruited through deception to arrive to a ship (FREEWIND), was transported by airplane and brought to Mexico, that same month of november, to the street of Puevla were she was located and her immigration documents were taken away from her and was forced to cleaning labors without getting any retribution back to her.
"…it is AGREED
"FIRST.- The beginning of this preliminary investigationese
"SECOND.- In accordance to articles 118, 125 and 242 of thedel Federal Code of Penal Procedures, Blanca Inés García Bernal declaration must be taken, in the presence of Hernando Franco Bernal of the Colombian Consulate ensuring THE LEGITIMACY OF HER IDENTITY and ENSURING SHE IS FULLY EXPLAINED THE REACH OF SUCH RIGHTS, make her aware about the stages and development of this investigation and the penal procedure.
"THIRD.- The Prosecutor as the defensor of the legality and interests of the society plays a key rol in the safeguards, protection and assistance of victims of any kind of crimes, and must be committed and dedicated to increase the guarantees of the victims, this authority considers necessary to give any psychological support that the ofended party Blanca Inés García Bernal might need and thus it is requested to provide a psychologist.
"FOURTH.- With the purpose of verifying the physical integrity of Blanca Inés García Bernal a ministerial inspection must be performed on her body.
"COMPLY. The above was agreed and signed by María de Lourdes Palacios Espinosa, Director of Investigations of Human Trafficking
Signed
Witness Witness
Lic. JOSÉ ANTONIO DAVID HERRERA ROSALES
SIXTOS ORTEGA"
Juridical commentary:
As it can be observed, Ms. Palacios Espinosa, stated in her agreement that the official of the General Consulate of Colombia in Mexico, PRESENTED his compatriot Blanca Inés García Bernal, SO THAT SHE CAN DO A COMPLAIN.
In that same paragraph, Ms Palacios Espinosa said what apparently Blanca Inés García Bernal stated at the moment: "...that she is colombian and that in her country on the month of november last year through the religious organization of the Sea was recruited through deception to arrive to a ship (FREEWIND), was transported by airplane and brought to Mexico, that same month of november, to the street of Puevla were she was located and her immigration documents were taken away from her and was forced to cleaning labors without getting any retribution back to her. ."
However, it needs to be pinted out that in that agreement of iniation that Blanca Inés García Bernal supposedly makes the declarations transcribed by Ms. Palacios Espinosa, about her nationality and the date that "she was recruited through deception", brough to Mexico, and forcéd into cleaning labor, but INEXPLICABLY there is no signature of Blanca Inés García Bernal which is ABSOLUTELY ILLEGAL.
We must point out that in that agreement, and because Blanca Inés García Bernal was going to make the complain VERBALLY, Ms Palacios Espinosa, ordered to take in account the articles 118 y 119 of the Federal Code of Penal Procedures.
The FIRST NOTICE that Ms. María de Lourdes Palacios Espinosa had to issue the agreement of initiation of the 23 December 2009, was what she stated in the second paragraph of the agreement above transcribed:
"Mr. Hernando Franco Bernal, In charge of Detainees, Localizations and Disappeared People of the General Consulate of Colombia in Mexico is here and presents BLANCA INÉS GARCÍA BERNAL, Colombian, so that she can FILE A COMPLAIN for the crime of human trafficking commited against her."
Because of that, in the agreement of initiation she stated as her basis the articles 118 and 119 of the Federal Code of Penal Procedures.
However articles 118 and 119 of the Federal Code of Penal Procedures that were valid at the moment Blanca Inés García Bernal made her delcaration on the 23 december 2009 and which are still valid until now, establish the following:
"Artículo 118.- The complains can be made verbally or in written. These must be about facts allegedly criminal, without qualifying them juridically, and will be made under the terms of the right of petition. When a complain does not have these requirements, the official who reeives it will prevent the complainant so that it can be modified, adjusting it to such requirements. Also, the complainant will be informed of this making it clear in the writ of complain about the juridcal importance of the act the complainant is doing and what can happen if her/she lies to the authorities as well as the procedures that will be followed
"In the case of the complain being presented verbally, this will be made known in the writ of complain taken by the official. These must contain the signature of the alleged victim wheter they are in written or verbally.
"Article 119.- When a complain is in written, the official who knows about it must ensure that the identity of the complainant is legitímate as well as the documents presented.
"In any case, the public servant who receives the complain verbally or in written will ask the complainant to present under oath, according to article 118 and will do the appropriate questioning. "
APPLICABLE JURISPRUDENTIAL THESIS
Based on a meticulous study of the documents transcribed, it is necessary to conclude that such precepts were established with the purpose of giving juridical certainty to the person who will be assigned the appropriate responsibility in case the facts asseverated are false. The following thesis is applicable:
"COMPLAIN PRESENTED VERBALLY OR IN WRITTEN. IN TERMS OF ARTICLE 118 OF THE FEDERAL CODE OF PENAL PROCEDURES IS NECESARY THAT IT DESCRIBES THE FACTS WHICH CONSTITUTE THE CRIME….; the above, with the purpose of giving juridical certainty about the person who might be assigned the appropriate responsibility, in the case that the asseveration is found to be false; there fore when the complainant omits to nárrate the criminal elements, the authorities are legally impeded to issue a formal order of comital to prison, with no exception.
BLANCA INÉS GARCÍA BERNAL DID NOT PRESENT ANY "COMPLAIN" IN HER FIRST MINISTERIAL DECLARATION
The first ministerial declaration of Blanca Inés García Bernal, of the 23 dec 2009, when examined in detail against aritcles 16 and 19 of the constitution and 118 and 119 of the Federal Code of Penal Procedures, it can be seen that ms. Palacios Espinosa, agreed to comply to the following:
In first place, as she stated in her agreement of initiation, the official should have ensured about the identity of Blanca Inés García Bernal, alleged complainant.
In Second place, should have informed Blanca Inés García Bernal, MAKING IT CLEAR IN THE AGREEMENT, about the jurídical trascendency of the act she was doing.
In third place, should have informed Blanca Inés García Bernal, about the penalties for perjury.
In fourth place, should have informed Blanca Inés García Bernal about the modalities of the procedure, as it had to do with a crime punishable by law.
In fifth place, Blanca Inés García Bernal DID NOT EXPRESS a COMPLAIN, against who could be responsible and especially against Alexande Spatz.
In sixth place, as it was not a written complain, and apparently an alleged verbal complain, this fact had to be made clear in the writ of the complain received by the public servant.
In seventh place, Ms. María de Lourdes Palacios, had to point out the juridical basis by which she acted in "functions as public prosecutor of the Federation".
MS. PALACIOS ESPINOSA, "IN FUNCTIONS OF AGENT OF THE PUBLIC PROSECUTOR OF THE FEDERATION" DID NOT ENSURE OF THE IDENTITY OF THE COMPLAINANT.
Ms. Palacios Espinosa FAILED TO COMPLY with what is irderd in articles 118 and 119 of the Federal Code of Penal Procedures in her agreement of initiation as follows:
In first place, Ms. Palacios Espinosa FAILED TO COMPLY with what was established in point number two of her agreement of initiation which states: "ENSURE ABOUT THE IDENTITY"
Indeed, immediately after the agreement of initiation at 1:30 pm of the 23 december 2009, in the FIRST miniterial declaration of Blanca Inés García Bernal, the public servant stated the following: }
"…appears before me who said is called BLANCA INÉS GARCÍA BERNAL. She is requested for an identification, stating she does not have it as it is safeguarded by the shelter where she is at and she is asked whether she has any inconvenient to be taken a FULL BODY PHOTOGRAPHY ONLY FOR IDENTIFICATION and once printed will be added separately."
In second place, it was not established in that first declaration of Blanca Inés García Bernal the name of the person who took that photograph.
In third place, when examining the preliminary investigation, there is no printing of the photography of Blanca Inés García Bernal.
In conclusion, it can be found that the first declaration of Blanca Inés García Bernal DID NOT FULLFILL THE REQUIRMENT that the prosecutor had to ensure the identity of Blanca Inés García Bernal, which means it is COMPLETELY INVALID.
MS. PALACIOS ESPINOSA, "IN FUNCTIONS OF AGENT OF THE PUBLIC PROSECUTOR OF THE FEDERATION"
FAILED TO COMPLY WITH ARTICLES 118 AND 119 OF THE FEDERAL CODE OF PENAL PROCEDURES.
Further in the FIRST declaration of Blanca Inés García Bernal, ms Palacios Espinosa, stated the following:
"She is made known the contents of article 127 bis of the Federal Code of Penal Procedures which consist of any person who has to render a declaration has the right of doing it assited by an attorney named by her, and in this sense the com says she does not need an attorney.
"She is made aware of the rights as in article 20 of the constitution
"…And the contents of article 141 of the Federal Code of Penal Procedures
"…she is made aware of the stages and development of the investigation and penal procedure,
"…she is told that the first step that this Special Prosecutor Office must make is in the sense of its own competency according to agreement A/024/08 of the Federal Prosecutor of the Republic, and thus this Prosecutor Office is competent in attending probable crimes related to violence against women.
"Again, she is made known the contents of the dispatch C/005/99 issued by the Federal Prosecutor, with regards to the exercise of the penal action which will be notified personaly in her domicile and will have 15 days to present the pertinent observations…."
Juridical Commentary:
Analizing this part of the first declaration of Blanca Inés García Bernal, it can be seen that Ms. Palacios Espinosa, told the complainant about article 20 of the Constitution and articles 127 bis and 141 of the Federal Code of Penal Procedures, the agreement A/024/08 and the dispatch C/005/99 of the Federal Prosecutor.
However, INEXPLICABLY, Ms. Espinosa DID NOT STATED in the FIRST declaration of Blanca Inés García Bernal, AND DID NOT LET HER KNOW what is established in articles 118 and 119 of the Federal Code of Penal Procedures as follows:
First place, did not stated what is established in article 118 of the code refered to, with regards to making it clear the JURIDICAL TRASENDENCY of the act being done.
Second place, she did not establish in the complain the penalties that Blanca Inés García Bernal would be subjected to, in case of perjury.
In third place, did not establish in the writ of the complain the modalities of the procedure
In fourth place, DID NOT ESTABLISH IN THE WRIT that Blanca Inés García Bernal was PRESENTING A COMPLAIN for the facts narrated.
In fifth place, did not establish having required Blanca Inés García Bernal to declare under oath and AWARE of what is established in article 118.
In sixth place, the public servant should have etablished the juridical basis by which she was "acting in functions as Public Prosecutor".
Ms. Palacios Espinosa, in the writ of declaration of the 23 december 2009 DELIBERITALY OR BY IGNORANCE, OMITTED all of the above.
THE DECLARATION OF BLANCA INÉS
GARCÍA BERNAL OF 23 DECEMBER 2009
CANNOT BE CONSIDERED A COMPLAIN
For the above reasons, we considere the first declaration of Blanca Inés García Bernal, of the 23 december 2009, as juridically and legally NOT CONSTITUTING A COMPLAIN, which could be considered as a human rights violation against Mr Alexander Spatz.
By dispatch number FEVIMTRA/TRA/1420/10, of the 6th of October 2010, the Prosecutor of the FEVIMTRA, issued the order AP/PGR/FEVIMTRA/TRA/023/2009, in which penal action was taken against ALEXANDER SPATZ and others, for his probable responsibility in the commission of human trafficking.
In such resolution of penal action, the following was stated:
The 7th Judge of Penal Federal Procedures received the writ of penal action, and issued an order of apprehension against Alexander Spatz and on the 1 november 2010, this order was complied to and was imprisoned in the South Prison of Mexico City, and is deprived of his freedom until now.
Mr. Alexander Spatz, in a write up of the 23 may 2011, asigned Jaime Cancino León, César Antonio Prieto Palma, Ronald Duglas Prat Celis y Eileen Matus Calleros, to act as his defense.
In different times, we have wanted to meet in person with the public servants Sara Irene Herrerías Guerra, José Antonio Pérez Bravo and Vicente Alberto Bugarini Díaz, In Charge, Technical Coordinator and Deputy Director General for Special Procedures respectively of the FEVIMTRA, to accept the position as defense attorneys confered to us by Alexander Spatz Leyva, without achieving it.
We consider that the fact of denying us to accept that position violates the human rights of Mr.Alexander Spatz, recognized by the constitution, and if this complain is considered valid, an investigation into the matter should be done.
México City 1 June 2011.
Lic. Ricardo Franco Guzmán, Lic. Jaime Cancino León
Lic. César Antonio Prieto Palma
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