The legal mess of the Colosio case; the murder was about to go unpunished

The recent resolution of the Aburto-Colosio case makes us reflect once again on this painful matter from three decades ago. That's why I take advantage of the hospitality of Excelsior and the invitation from its editorial director, Pascal Beltrán del Río, to express some of my reflections that are not new and many of them have already been heard from me, but that have worried me for so many years. Of course, this requires some prior warnings.

The first is that it is a matter of very high legal complexity, even for the most knowledgeable specialists. Therefore, we should not be surprised when viewers or communicators do not understand or do not explain to us clearly enough. It's like top oncologists arguing about a new chemotherapy drug. Not everyone would understand nor everyone would agree with each other.

For that reason I will try to be as explicit as possible in these brief lines. I hope to make it.

The mess comes from the year 1993 in which a government commission that I had to coordinate developed the so-called and feared power of attraction. A real atomic bomb that we invented for criminal proceedings. But two problems resulted. One, that our invention had initial imperfections, despite the fact that my colleagues on the committee are among the most expert Mexican lawyers, although I exclude myself from that qualification.

The second was that the authorities in charge of its application have made 30 years of errors in its conception and operation. It is as if Oppenheimer's invention had had defects but, in addition, it had been dropped on Texas and not on Hiroshima.

I have written and published all these nonsense. It has been useless. I have talked about it with many prosecutors and with several Mexican presidents. But those at the top do not listen to those of us below and those inside do not listen to those of us outside. I insisted for 30 years that this was going to happen. And it's over. My publishing houses, Excelsior and Porrúa are my witnesses.

I don't like being right. I would have liked the greatest punitive rigor for the murderer of Luis Donaldo Colosio and to provide timely remedies to the possible contingencies that have become reality today. But I will plow in the sea, like Simón Bolívar; I cried in the desert, like John the Baptist; and I bet against destiny, like Romeo Montague.

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Today it turns out that a Collegiate Court ruled on a direct amparo, thereby modifying the scope of the conviction of December 1994. It does not exonerate or exonerate him, but only establishes another law, which will change the federal sentence of 45 years for a local sentence of 30 years, which have already been purged.

The matter in question presents us with an intricacy of 15 riddles that we summarize here.

1. What are the events that gave rise to this matter?

On March 23, 1994, Mario Aburto Martínez murdered Luis Donaldo Colosio, PRI presidential candidate, with a pistol at a political rally. The homicide was committed in Tijuana, Baja California.

2. What is the power of attraction?

It is the possibility of a federal judge assuming the process and handing down the sentence in the case of a local crime, which would be the original jurisdiction of a state judge, in this case Baja California, and not a federal government judge.

3. Why was the power of attraction used in this case?

The power of attraction came into force in January 1994. When the homicide occurred, it was two months old and had never been used. However, the high federal authorities assumed that, since the Baja Californian government was PAN, it would be very accommodating with the murderer of the PRI candidate.

In turn, the PAN members considered that it would be more comfortable for them if the PRI members themselves were in charge of investigating and punishing whoever wronged them with the homicide and that they would not have to run the risks of conjecture.

That was against the law.

4. What is required to exercise the power of attraction?

The following is required to occur:

a) That in the same case at least two crimes are committed, some federal and others local.

b) That these crimes form a series of crimes.

c) That there are corresponding processes for the crimes committed.

d) That these crimes have been committed by two or more people.

e) That this is resolved by the prosecutor's office or public ministry.

5. In the case at hand, could the power of attraction be used?

No, because not all of the aforementioned requirements were met. Only a), b) and e) were given. But c) and d) were not given.

It is true that at least two crimes of different jurisdictions were committed. Homicide, of a local nature and jurisdiction, and the discharge of a firearm, of a federal nature and jurisdiction. Both together form a series of crimes, provided for in both codes. It also turns out that the then PGR decided it.

But requirements c) and d) were not met because there were no various processes and because they were not committed by several individuals, but it was always concluded that it was a solitary murderer. Lacking a plurality of individuals, connection cannot occur.

That was against the law.

The combination of crimes and the connection of processes are required to exercise attraction, in accordance with article 20 section IV, in relation to article 30 of the current National Code of Criminal Procedures and as required in 1994 by article 10 of the then Code Federal Criminal Procedures.

6. What is the crime competition?

That with a single conduct several crimes are committed, just as it happened that with the same act the shooting of a firearm (federal) and the homicide (local) were committed. That's called ideal crime competition.

7.Were there several processes?

No. When the attraction was exerted, not only had several processes not been initiated, but not even a single one. It was decided from the beginning of the investigation, then called preliminary investigation.

That was against the law.

8.So, was that attraction illegal?

Of course it was illegal. This is because the requirements required by law were not met, then article 10 of the Federal Code of Criminal Procedures and now article 20 of the National Code of Criminal Procedures.

9.Was that attraction constitutional?

Furthermore, it was unconstitutional at the time of the events because at that time it was established in a law (CFPP) that did not have sufficient constitutional hierarchy to transfer powers from the states to the Federation.

It was not until 2016 when this faculty acquired the necessary constitutional hierarchy (CNPP). But this was no longer applicable to the case.

It is worth mentioning that in 1996 or 1997 a constitutional reform was made in article 73, section XXI. This was to try to support the case of a single defendant. But this patch was so absurd that it was of no use.

10.What happens when the power of attraction has already been exercised?

The federal judge assumes jurisdiction to judge federal and local crimes that occur in the same case. He will also hand down the corresponding sentence, for both federal and local crimes.

11. When does federal code apply and when does local code apply?

The federal code applies only to federal crimes.

The local code applies to all other non-federal crimes.

The accumulation of processes concentrates the matter in a single judge, but does not determine a replacement of laws. In appeal, the federal judge applies federal law and local law as appropriate.

12. What are federal crimes and what are local crimes?

Absolutely all non-federal crimes are local crimes.

They are federal crimes:

a) Those provided for in federal laws.

b) Those provided for in articles 2, 3, 4 and 5 of the Federal Penal Code, basically those committed by Mexicans abroad and those committed against Mexicans abroad.

c) Those committed abroad by Mexican diplomats or their assistants.

d) Those committed in Mexican embassies or legations established in Mexico.

e) Those in which the Federation is a victim or passive subject.

f) Those committed in the provision of a federal public service.

g) Those committed against a federal public service.

h) Those committed by a federal public servant in the use of his or her powers.

i) Those committed against a federal public servant in the use of his or her powers.

j) Those committed against electoral officials.

13. By what law should the murderer be punished?

With the Penal Code of Baja California, as dictated by the recent resolution of the Collegiate Court, in the corresponding protection.

He should never have been punished with the Federal Penal Code. That was illegal.

14. Does this resolution generate a serious problem for justice?

Actually, no serious problem. According to the law, the punishment is 30 years. That was resolved until now and those years have passed. So it's a pyrrhic victory. He will not spare any day of those he had to suffer.

It is true that federal law establishes a sentence of 45 years, but that was not applicable. So nothing was lost or gained with this new resolution.

15. Could it have been worse?

It could have been much worse. If the defense had alleged the judge's jurisdiction and not the penalty of the law, it would have been released within a year and without the possibility of reopening a new trial. This would have been a big defeat.

Due to an error by the PGR, Colosio's murder was on the verge of going unpunished. It's good that he didn't have the ideal defense.

The official errors were very initial and very much due to innovation. Later, many very competent lawyers were prosecutors for this matter who carried out the process impeccably and carried out a difficult job both due to procedural complexities and popular conjectures.

The history of the prosecutor's offices recognizes each of them.

The assassination is the most complicated of crimes to please history. The assassinations of Julio César, Lincoln, Kennedy, Obregón and Colosio have not been resolved to everyone's satisfaction. And they will never satisfy everyone.

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