Mexico City.- Although the case has already been closed twice in the last 18 years, the reopening of the investigation against former collaborators of Genaro García Luna is once again in dispute for the alleged torture of Israel Vallarta Cisneros, Florence Cassez’s ex-boyfriend.
Luis Cárdenas Palomino – today imprisoned – and Francisco Javier Garza Palacios, former directors of Investigation and Special Operations of the Federal Investigation Agency, along with other agents, were accused of torturing the alleged plagiarist, after capturing him on December 8, 2005 in the Las Chinitas Ranch.
According to ministerial and judicial documents, before the end of Enrique Peña Nieto’s six-year term, on April 7, 2017, the then Attorney General’s Office of the Republic archived preliminary investigation 147/DGDCSPI/1975/2006, because it found no evidence to incriminate to those accused. It was the first time he closed the case.
During the current administration, the Attorney General’s Office (FGR) opened two investigation files that were accumulated into one, but on February 23, 2021, it archived the investigation for the second time, because it considered that it was already res judicata.
That second case was initiated in 2019, but it was the result of a request that Vallarta made on April 24, 2017 to the judge of the case, to review or report to the FGR the results of the Istanbul Protocol, which concluded that he was a victim of torture.
Vallarta made that request 17 days after the then PGR resolved the first “file.”
As nothing happened for more than two years, on July 17, 2019, María Guadalupe Vallarta, sister of the accused, presented a letter to the FGR to request reports of the actions carried out, after the judge’s hearing, with the purpose of “appear and provide evidence for the proper integration of the victimizing act of torture.”
On August 8, 2019, the FGR informed the trial judge that it had opened an investigation file, derived from the letter from Vallarta’s sister. However, in February 2021, the Prosecutor’s Office closed the investigation for the second time, because the case had already been investigated and closed and the principle of res judicata could not be violated.
Cárdenas Palomino is in prison at the Altiplano Penitentiary, on trial for alleged torture, but against relatives from Vallarta, arrested by the Federal Police in 2012 and also imprisoned for the crime of kidnapping.
“Fraudulent filing”
Vallarta’s defense challenged this latest “folder” and in a hearing on May 14, 2021, the control judge Felipe de Jesús Delgadillo Padierna ordered the investigation to be reopened, because in his opinion there was a “fraudulent res judicata”, given the partiality of the FGR.
“As for the impartiality of the person who issued the resolution, we have to say that only evidence that favored the actions of the then PGR and the AFI was taken into account, the Istanbul Protocols as evidence that were practiced by non-certified experts, who did not use the special format for cases of complaints about the practice of torture,” said Delgadillo.
“The Inter-American Court of Human Rights created a concept called ‘fraudulent res judicata’, originating from the Carpio Nicole et al. v. Guatemala case, and defined it as a defective activity by the authority, when one, the rules of due process were not respected or two, the authority did not act independently and impartially, thereby attempting to exempt the state from fulfilling its obligation to investigate and sanction sentences issued from procedures that do not meet minimum legal standards.”
In December 2015, the PGR agreed to consult the file of the preliminary investigation, but it was not until April 7, 2017 when it decided to close the case for the first time.
Among the violations of due process, the control judge mentions that Vallarta was not notified “in such a way” of that consultation to archive the file and that is why later its protection against the “folder” was rejected.
Delgadillo Padierna also stated that the year and four months that it took the PGR to issue the first “case file” was a violation of the principle of prompt and expeditious administration of justice.
He said that during that time period the Istanbul Protocol was practiced, which concludes that Vallarta was tortured and, however, the FGR no longer took that opinion into account because it was presented out of time, in April 2017, when it had already been filed by first time the case.
A protection judge, however, canceled the reopening of the investigation into the alleged torture of Israel Vallarta, because he estimated that Delgadillo Padierna made that decision in a hearing in which he did not summon the accused, in May 2021.
Julio Veredín Sena Velázquez, Seventh Amparo District Judge in Mexico City, considered that his counterpart’s determination violated the rights of defense and hearing of the police officers and commanders accused of the alleged humiliation.
This was the ruling made when granting protection to Francisco Javier Garza Palacios, former director of Special Operations of the AFI, and former agents Germán Ovidio Zavaleta Abad and Carlos Alberto Servín Castorena.
“The rights of hearing and right of defense, as well as the principle of contradiction, were violated to the detriment of the amparo petitioners; given that at the hearing on May 14, 2021, it was not legally justified that the party investigated here identified as complaining party, were summoned and despite being aware of it, they did not attend the challenge hearing,” says one of the amparo rulings.
Sena instructed the control judge to call a new hearing with the presence and participation of all those under investigation and their defense attorneys, and to decide at his discretion whether to reactivate the investigation or not.
The FGR has already challenged Sena’s ruling, which is why it will be a collegiate court that will ultimately decide whether a new hearing will be held to debate the reopening of an investigation that began 18 years ago.
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