REPORT OF THE INTER-AMERICAN COMMISSION
Resolution No. 32/86 of September 26, 1986, approved by the Commission at
its 68th regular session (OEA/Ser.L/V/II.68, doc. 41);
The proposal made by the petitioners during the 69th regular session
(March 1987) of the Commission to the effect that the Office of the Attorney
General of the Republic of Mexico should begin proceedings for the recognition
of innocence of Mr. Aulo Cebrían Elizondo in the Supreme Court of Justice of
the Nation, in which the petitioners forsook any type of economic compensation;
that proposal was forwarded by the Commission to the Government of Mexico,
pursuant to Article 48.f of the American Convention on Human Rights (hereinafter
the Convention), in a letter dated March 20, 1987;
The answer of the Government of Mexico, dated May 11, 1987, proposing a
solution to the case, in which that Government said that it considered1
“… that a friendly solution is not in order inasmuch as it would
not have been proposed by the Commission had it been aware of the crafty nature
of the petitioner’s arguments, which were distorted in this brief as a result
of the investigation, which were distorted in this brief as a result of the
investigation conducted, and because there had been no violation whatsoever of
the petitioner’s human rights.”
TAKING INTO ACCOUNT all evidence presented to the Commission by both
petitioner and the Government of Mexico which points to the following:
Three criminal proceedings were initiated against Messrs. Alejandro and
Aulo Cebrián Elizondo:
Case No. 190/77, in the local jurisdiction to which were joined
cases 214/77, 216/77, 397/78, and II/12/78 for acts punishable pursuant to
Article 378, section IV of the Criminal Code of the State of Nuevo León, for
the crime of fraud. That article
Article 378 – “The sanctions referred to in the previous article
shall apply to the following cases.
Section IV. To a person
obtaining from another a quantity of money or any other profit by giving to him
or endorsing over to him in his own name or the name of another person a
document, to the order of someone or to the bearer, bearing the name of a
fictitious person or someone that the dispenser of that document knows is not
obliged to pay it.
If the amount is greater than 50,000 pesos, the prison term shall be
from 6 to 12 years and the fine from 5,000 to 10,000 pesos.”
Case No. 70/77 in the federal jurisdiction (joined with Case
65/77, for violation of Article 193 of the Ley General de Títulos y Operaciones
de Crédito (General Law on Securities and Loan Operations), or for issuing
uncovered checks. That article of
the General Law on Securities reads as follows:
Article 193. “The Drawer
of a check presented for payment in time and not paid for reasons attributable
to the drawer himself shall compensate the bearer for any resulting damages.
In no case shall the compensation be less than 20% of the value of the
The drawer shall also be guilty of fraud if the check is not paid
because he did not have funds available when writing the draft, because he
disposed of the funds before the expiration of the presentation period, or
because he was not authorized to issue to the order of the drawee.
Case No. 21/98, within the federal jurisdiction, for violation of
Article 149, Section I, of the Ley General de Institutiones de Crédito y
Organizaciones Auxiliares (General Law on Credit Institutions and Subsidiary
Organizations, or the Crime of Statutory Fraud).
That provision reads:
Art. 149. – “The following shall be subject to a prison term of
from 2 to 10 years and a fine from up to 1,000,000.00:
Section I. Individuals
who, in order to obtain a loan, provide to a credit institution or subsidiary
organization false information on the amount of assets or liabilities of a
company or individual or a body cooperate if this action results in a material
loss for the institution or organization.”
In view of the applicable laws, the aforementioned cases are distinct in
terms of the nature of the specific crimes that gave rise to each of them,
namely; the first case (190/77) is a crime under the criminal legislation of
Nuevo León characterized by the use of “nominative document” under the
terms of the aforementioned Article 378, as a way or means of committing fraud;
in the second case (No. 70/71) the crime consists in placing in commercial
circulation a document without value pursuant to any of the terms in Article
193, paragraph 2, of the Ley General de Títulos y Operaciones crediticias; in
the third case (No. 21/98) criminal activity occurs when someone, for the
purpose of obtaining a loan, gives a bank or credit institution false
information or data on the amount of the assets or liabilities, on the basis and
as a result of which the landing institution suffers a material loss.
The first two cases were actually brought on the basis of distinct
material facts: in the first case
(Case 190/77) the check used to commit the fraud was Check No. SO 480405 dated
June 6, 1977; in the second case (No. 70/77) the bad check put into circulation
was check NO. SO 480438 dated June 8, 1977.
The third case (No. 21/98) was brought for the crime of statutory fraud
(Article 149 of the Ley General de Instituciones de Crédito y Organizaciones
Auxiliares) in that, in January 1977, Mr. Cebrán Elizondo asked two banking
institutions to expand his line of credit and provided false information on his
property and amount of assets which had been sold prior to the request for
credit, all of which led to a charge by the Polibanca e Innova, S.A., Banpaís,
S.A., and Probanza del Norte, S.A., for the alleged crime of statutory fraud
pursuant to the aforementioned Article 149.
According to the case files, those cases against Messrs. Cebrián
Elizondo were processed within the respective jurisdictions and by competent
judicial authorities; the warrants for arrest (or indictments) issued as the
court orders for the investigation of each crime fulfilled legal requirements
and, in particular mention is made of the previous investigation conducted in
each case to establish incriminating evidence in support of those court orders.
In each of the cases, according to the case files, the accused were given
the opportunity to take any appropriate interlocutory substantive action,
In the first trial, in the local jurisdiction, for the crime of
fraud, the indictment was issued by the Fourth Magistrate (Juez de Letras) of
the Criminal Court of Nueno León and confirmed by the First Judge of the
District of the State of Nuevo León. The
writ of relief filed in the local jurisdiction was rejected by the Tribunal
Colegiado (Collegiate Tribunal), Fourth Circuit, Monterrey, State of Nuevo León. A writ of disappearance of the evidence leading to the
issuance of the warrant for arrest and was denied by the Fourth Magistrate.
Writs of relief were filed against that denial, which was upheld by
decisions of the Fourth Chamber of the Tribunal of Justice, the First District
Judge, and the Collegiate Tribunal of the Fourth District.
Thus all possible action was taken in connection with interlocutories and
previous and special pronouncements.
With regard to the substance of the case, the Fourth Judge of the local
jurisdiction acquitted the accused on January 29, 1980.
That decision, appealed by the Public Ministry, was overturned by the
second chamber of the Higher Tribunal of Justice of the State of Juevo León,
which found the defendants guilty on May 19, 1980.
Finally, the convicted defendants Aulo and Alejandro Cebrián Elizondo
filed two writs of direct relief in this case (190/77) against the
aforementioned decision of the Second Chamber of the Higher Tribunal of Justice
of May 19, 1980. In the first
appeal (Aulo Cebrián), number 5359/80, the Auxiliary Chamber of the Supreme
Court of Justice of the Nation upholds the conviction for the crime of statutory
fraud but acquitted him of the crime of breach of trust and therefore lowered
the sentence accordingly. In the
second case (Alejandro Cebrian), number 5615/80, the Auxiliary Chamber of the
Supreme Court rejected all sections of the appeal and, after pointing out that
the sentence (that issued on May 19) “does not violated guarantees,” does
not protect Alejandro Cebrián Elizondo against it.
The appeals were decided on by the Supreme Court on January 13, 1983.
In the second trial (case 70/70), in the federal jurisdiction, for
the issuance of uncovered checks, as pointed out earlier distinct from the
charge brought in case 190/77 for writing uncovered checks under local
jurisdiction, an indictment was returned by the First Judge of the District of
the State of Nuevo León, following the legally required prior investigation,
for the crime under Article 193 of the aforementioned Ley General de Título.
The indictment, serving as the court order for investigation of that
crime, was followed by a conviction dated March 19, 1981, by the First District
Judge of the State of Nuevo León. The
convicted defendants filed an appeal against that sentence, which was denied by
the magistrate of the Fourth Circuit Court, in a decision of July 6, 1981, which
upheld the decision of the lower court.
In ruling on the appeal, the Unity Tribunal of the Fourth Circuit Court
specifically refers to the problem presented by the defendants that they were
being tried for the same crimes, in violation of Article 23 of the Mexican
Constitution and (on pages 20-21) state the following:1
“Regarding the first offence, although Article 23 of the Constitution
establishes the principle of ‘Non bis in Idem,’ since in the decision they
are acquitted or convicted, and if when an individual is tried it is understood
that he has been convicted or acquitted by mans of a firm or irrevocable
decision there is no entry to Messrs. Cebrián Elizondo, since they were not
tried twice for the same offense.”
Two issues are relevant in that quotation:
the first, that the matter non bis in idem was examined and
rejected by the competent legal authorities in the two instances of case 70/77
and the case joined to it, 65/70; and the second, that in the light of the
sentence in case 70/77 the facts constituting the crime of fraud (in the local
jurisdiction which led to case 190/77) are different from the fact comprising
the crime under Article 193 of the Ley General de Títulos, within the federal
jurisdiction, which are tried and ruled on by other legal authorities and are
sanctioned by different penalties. It
is therefore wrong to believe that that principle was violated in any case, had
there been any doubt on the part of the complainants, they could have filed a writ
of direct relief before the Supreme Court of Justice for violation of a
guarantee explicitly established in the Constitution of Mexico (Art. 23).
In the case files there is no record that this appeal was filed in case
70/77, which is surprising in view of the large number of legal actions taken by
the accused at various levels of the legal system, within both local and federal
In the third trial (case 21/82), within the federal jurisdiction,
for the offense of statutory fraud, the first judge of the state district
returned an indictment once the previous investigation by the Public Ministry
had been completed. The second
judge of the state District found the defendants guilty on June 30, 1982, and
sentenced the two Messrs. Cebrián to 7 years in prison and a $5,000,000.00
fine. The sentence was appealed
and, on February 4, 1983, the Unitary Tribunal of the Fourth Circuit upheld the
lower court’s decision and therefore rejected the defendant’s appeal.
In its decision, the lower court had examined the problem of whether the
defendants had been tried for the same crimes as in previous cases and rejected
that allegation. Indeed, on pages
10 and 11 of that sentence, the following is stated which, in the opinion of the
Commission, is sufficient to establish objectively that there was no violation
of the principle non bis in idem, contained in the Mexican Constitutional
guarantee of Article 23. The
relevant portion reads as follows:1
Finally, with regard to the copy of the sentence contained in the
summary on pages 300 to 339, handed down by the Fourth Judge of the Criminal
Court, residing in this city, in connection with the joint cases 190/77, 214/77,
215/77 and 216/77, through which the accused endeavored to show that they were
tried for the same facts as those that led to this criminal case, it points out
that those cases were brought for the commission of the crimes of fraud and
breach of trust, consisting in the issuance of checks by the accused that were
not covered, in some cases, because of insufficient funds and, in others,
because the drawer did not have an account or had cancelled it; these facts are
separate from those of concern to us, consisting in providing false information
to banking institutions on the amount of their assets to obtain loans, since, in
the personal balance sheets they presented to POLIBANCA INNOVA S.A., on March
18, 1977, and to PROBANCA NORTE, S.A., and BANPAIS, S.A. on March 22 of that
year, Aulo and Alejandro Cebrián Elizondo included real estate that they had
sold on November 30, 1976, as was proven by the respective legal documents,
which leads to the conclusion that the facts behind this case are distinct from
those behind earlier cases and that the defendants are not being tried twice for
the same offenses. On the basis of
the foregoing, it convicted AULO CEBRIAN ELIZONDO and ALEJANDRO CEBRIAN ELIZONDO.
With regard to the sentences handed down in cases nos. 190/77 and 70/77,
the defendants have already served their sentences; however, in connection with
Case 21/982, regarding the crime of statutory fraud under Art. 149, section I of
the Ley General de Instituciones de Crédito y Organizaciones Auxiliares, the
convict is also serving this sentence. Thus
different penalties were imposed on Mr. Aulo Cebrián for different crimes
investigated by different legal bodies on the basis of orders that were also
As for Case 21/82, as occurred for Case 70/77, although the complainant
alleged violation of the constitutional guarantee of Art. 21 (non bis in idem),
he has not filed a Writ of Direct Relief with the Supreme Court of Justice of
the Nation that, if it were approved, would result in his immediate release;
this domestic recourse to which he is entitled pursuant to Art. 22.2, of the
Amparo Law is therefore pending in the Mexican system of Justice.
There is no evidence in the case filed that the defendants, Mr. Cebrián,
once he had paid the penalties imposed in cases 190/77 and 70/77 within the
local and federal jurisdictions, respectively, had been tried once again for the
criminal acts that were the subject of those cases, thus respecting the
constitutional guarantee under Art. 23.
It is not clear from the context of the complaint filed with the
Commission or from the data and information provided by the Government of Mexico
that, in the course of the proceedings referred to here, the legal guarantees
provided for in Art. 8 of the American Convention on Human Rights were violated.
In this connection, the following should be mentioned:
With regard to the guarantee provided for in Art. 8, Section 1, it is
beyond any reasonable doubt that Messrs. Aulo and Alejandro Cebrián Elizondo
were heard by the competent judges and tribunals of the legal system of Nuevo León
and the federal jurisdiction as well as by part of the highest tribunal of the
Mexican nation, namely, the Supreme Court of Justice, which ruled on the writs
of relief in connection with the complainants’ allegations regarding the cases
brought by the legal authorities. There
is no evidence that the complainants were denied access to judges in the courts
of justice to argue in their favor as is apparent in the complaint itself and
for series of judicial proceedings initiated in the course of the three
aforementioned trials. In this
connection the complainants had recourse to the Fourth Criminal Judge of Nuevo
León; the Second Chamber of the Tribunal of Justice of that State, which is an
appeals court; the First District Judge of the State of Nueva León; the Fourth
Circuit Collegiate Tribunal; and, as has been pointed out, the Supreme Court of
justice (Auxiliary Chamber).
These legal bodies were not special or ad hoc tribunals but part of the
country’s legal system, which were established prior to the commission of the
crimes involved in these trials and, unless evidence is provided to the
contrary, independent and impartial bodies.
As concerns the guarantee provided for in Art. 8, paragraph 2, presumption
of innocence, it may be noted that the indictments were issued on the basis
of previous investigations proceedings conducted in each case by the public
ministry and that, in ruling on the writ of relief, the Supreme Court (Nos.
5359/80 and 5615/80) the Supreme Court rejected the appeals but upheld the legal
validity of the legal proceedings that had been conducted, in particular with
regard to respect for guarantees in the actions taken, it should be recalled
that they still had access to writs of direct relief before the Supreme Court,
as indicated in paragraphs 5 f) and j) of this resolution.
In other words, the warrants for arrest were not issued until there was
clear prima facie evidence of the alleged guilt of the accused and they could
request a writ of relief against such warrants.
The proceedings were conducted in accordance with the guarantees provided
for in the aforementioned Art. 8, paragraph a through h, as is clear from the
facts provided to the Commission, viz: the
proceedings were conducted in the language of the complainants; the complainants
received prior detailed information about the charges brought against them in
each case as is apparent in the indictments based o Mexican Constitutional
guarantee (Art. 19); no one was detained for more than three days without due
justification was provided for in that provision, the accused had time to
prepare their defense and appropriate means to do so;
the complainants were assisted by legal counsel in their defense and,
during the proceedings, as is clear in the briefs, the defendants were able to
act in their defense as their legal counsel instructed; finally, it is obvious
that the complainants had full access to the appropriate resources to appeal the
decisions or resolutions (interlocutory or substantive) handed down in the
respective cases and, as mentioned earlier, to bring those cases to the highest
court of the nation to appeal for the protection of individual guarantees.
In connection with the complainant’s allegation that in Case 190/77 the
most benign interpretation of the law was not applied as provided for in Art. 9
of the American Convention, the case files show exactly the opposite since in
its decision on the request for amparo the Supreme Court of Justice, when it
decided to uphold the responsibility of the accused for the crime of fraud (Amparo
No. 5953/80), decided to apply the law in effect as of August 1981 and not the
previous one, which was harsher. This
explains the fact that the accused was then sentenced to 5 years in prison
instead of 6 as would have occurred it the less favorable law had been applied.
With regard to the complainants’ request, made at the hearing held with
the Commission on March 19, 1987, in Washington, D.C., to submit as a formula
for peaceful settlement a petition to the Government of Mexico that the Office
of the Attorney General of the Republic of Mexico initiate the proceedings for
the recognition of innocence of Mr. Aulo Cebrián Elizondo with the Supreme
Court of Justice of Mexico. Since
the complainants said that they could not make that request directly, the
Commission forwarded it to the Government of Mexico in a note dated March 20,
1987. In a note dated May 11, 1987,
said that it did not agree with the proposed solution because it was irregular
and ran counter to the internal legislation of the Federal jurisdiction in
effect regarding the recognition of innocence.
The Commission deems it appropriate to make the following observations:
The proposal forwarded by the Commission to the Government concerned on
March 20, 1987, as indicated above, was made without detriment to the decision
on the substance of Case 9706 which it was incumbent on it to make in due
course, since resolution 32/86 of the 68th session was merely of a provisional
or prima facie nature and, therefore, the processing of the case had not been
completed and at that time the Commission did not have full information to reach
a final decision.
The procedure for the recognition of innocence of the accused,
established in Arts. 550 ff of the Federal Code of Criminal Procedure expressly
provides (Art. 561) that it is for the interested or convicted party “who
considers that he is entitled to obtain the recognition of his innocence,” to
appear before the Supreme Court of Justice.
In that connection, the Code clarifies, “The petition is actually a
demand for the dismissal of the sentence, review of the previous trial, and
consequently the declaration of innocence of the person unjustly convicted.”
Art. 560 of the Code establishes the circumstances in which the
aforementioned proceeding may occur, among which are not found, in the
Commission’s view, those alleged by the complainant.
The proceeding of innocence is only applicable to cases under federal
jurisdiction and therefore would not be applicable to case 190/77 under local
jurisdiction, which was the subject of the request for direct amparo before the
Supreme Court of Justice of the Nation.
The procedure for recognition of innocence does not exist in the Code of
Criminal Procedures of Nuevo León, according to the information available to
the Commission in this case. In
that State the formula applicable under the Code is that of necessary pardon
(Art. 528), but the cases which allow for this provision would not include one
similar to Mr. Cebrián’s case. In
any event in the local jurisdiction as well it is for the person concerned to
initiate the proceedings under Arts. 528 and 532 of this code.
The Office of the Attorney General of the Republic, through the office of
legal counsel, and the Secretariat of the Presidency of the Republic of Mexico
have informed the parties concerned of these details which are also clearly
explained in the aforementioned legislation itself.
Thus the Commission declines to elaborate further on this point,1
except to say that there is no proof of the violation of human rights of the
parties concerned in this regard, as is stated in their communication of
February 25, 1987, in the case files.
With regard to the jurisprudence of the Request of Amparo from the
Supreme Court of Justice in Mexico mentioned by the complainant,2
in that what is decided by the Supreme Court in a case of issuance of an
uncovered check could be valid in his own case, the Commission refrains from
elaborating or issuing an opinion on this subject inasmuch as it would be
outside its purview, under the terms of the Convention, to determine the scope
of the national jurisprudence of the states parties to it, except when this
jurisprudence establishes situations contrary to law and to guarantees provided
for in the Convention.
Without prejudice to the above, it should be mentioned that the Request
for Amparo is individual in nature and in scope and consequently that the
sentences handed down in the sphere merely affect the complainants without
implying general declarations.3
That there is no evidence of a violation of any of the legal guarantees
provided for in Article 8 of the American Convention on Human Rights, in
particular, that provided for in paragraph 4 of that provision;
That the remedies under domestic jurisdiction have not been exhausted,
since the accused may still file a request for amparo directly with the Supreme
Court of Mexico in Case No. 21/982, for which he is
now serving his prison sentence; that, further, within the federal
jurisdiction, the complainant may request initiation of the procedure for
recognition of innocence provided for in the Federal Code of Criminal Procedures
(Arts. 560 ff) in the case 21/982.
That it is not possible to arrive at a friendly settlement of the case
since, pursuant to Mexico’s legal procedure, the basis or proposal for such a
solution is out of order;
That on the basis of the facts of the case, the presentation by the
complainant is himself, and the information provided by the State concerned, the
complainant presented in case 9706 is clearly unfounded.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare that the petition in Case 9706 does not present facts
constituting a violation of the human rights provided for in the American
Convention on Human Rights, in particular, the legal guarantees under Article 8
of the Convention;
To close the case.
To communicate this decision to the Government of Mexico and to the
The complainant requested reconsideration of this case which was denied
by the Commission during its 74th Meeting.
1. Note on page 32 of files.
1. A certified copy of the Unity Tribunal’s decision may be
found in the court files on the indicated pages.
1. A certified copy of the decision of the Second Judge of the
State District of July 30, 1982 in Case 21/982 for the crime of statutory
1. The case files contain the respective communications dated
January 17, 1987, and May 20, 1986, addressed to the interested parties by
2. Note dated February 25, 1987, in the case files.
3. In this connection see the note from the Government of Mexico
dated May 11, 1987 (page 26), in the case files.