Litigating on Behalf of Victims of Corruption: The Duarte Case from Mexico

18 February 2021

by Estefania Medina & Adriana Greaves, Co-founders of TOJIL México

A powerful governor embezzles more than USD 30 million that were earmarked for social programs to improve education and health. He is caught, sentenced to only nine years in prison – and given only a symbolic fine of less than USD 3,000. TOJIL is litigating to represent the views of victims of corruption who do not have a voice.

The case of Javier Duarte, a former governor of the State of Veracruz in east Mexico, illustrates how a lack of justice and impunity in Mexico allows public officials to steal an exorbitant amount from the treasury – without the damages caused by their corruption being addressed.

Javier Duarte is renowned for being the mastermind behind a large and complex corruption network used to embezzle millions of dollars from Veracruz’s treasury. Investigations by journalists found him to be close friends with a former president of Mexico, Enrique Peña Nieto.

Due to many public and legal accusations regarding corruption, Duarte escaped from Mexico in 2016. He was arrested in Guatemala in April 2017 and extradited back to Mexico. Despite substantive evidence against him, in September 2018, he negotiated a plea bargain with the Attorney General, to conveniently avoid trial. The result was a 9-year prison sentence and a fine of less than USD 3,000, with no compensation of the victims of his corruption scheme.

A Dubious Plea Deal

Why would the prosecution agree to such a plea bargain? There are indications suggesting that corruption may have been a factor. For example, the head of the Financial Intelligence Unit, without any explanation, had dropped accusations alleging Duarte’s involvement in organized crime. Furthermore, in Duarte’s own testimony, he admitted to making a deal with prosecutors in order to protect his family, specifically his wife, who at the time was seeking to challenge her extradition from the UK.

The plea bargain was signed and has been enforced. Because the Attorney General’s Office never recognized any victims in the Duarte Case, there have been no parties to the case to challenge the plea bargain or its terms.

With this in mind, TOJIL filed a criminal complaint against the federal prosecutors who are suspected to have received a bribe from Duarte in order to agree to such favorable terms in the plea bargain. TOJIL has also requested to be recognized as a victim of corruption for this second criminal procedure, considering that Article 13 of the UN Convention against Corruption (UNCAC) states that civil society organizations should be allowed to participate in the fight against corruption. The Mexican legal framework also establishes that NGOs can be recognized as victims in criminal procedures when the crime causes collective damage, as happens in corruption cases.

However, as expected, the Attorney General denied TOJIL this recognition. TOJIL challenged this decision before a federal court, but the judge supported the prosecutor’s decision. After this, TOJIL won a landmark resolution through an ‘amparo appeal’ in which, for first time in Mexico, the judge acknowledged that an NGO like TOJIL should be recognized as a victim of corruption.

In response to this, the Attorney General challenged the resolution in front of a higher court. Despite the fact that the resolution was revoked by two of the three judges, the case is now pending approval at the Inter-American Commission on Human Rights (IACHR). This step into the Inter-American system could make a significant difference in corruption cases, not just in Mexico but also in Latin America as a region.

The Power of Victims

The role of victims is very important in the Mexican context: since 2008, victims’ rights have been constitutionally recognized, allowing victims to directly present evidence, challenge prosecutors’ or judges’ decisions, and most importantly, to get reparation for damages made through the criminal procedure. Victims have almost the same power as the prosecutor and defendant during the criminal process – this has become a powerful tool against impunity in a country in which 98% of cases remain unsolved.

Sadly, the story in corruption cases is a different one: For many years, most prosecutors and judges have claimed that corruption is a victimless crime. As a result, many of the corruption cases remain unresolved, the perpetrators can act with impunity.

Why is there such strong resistance to recognizing victims in corruption cases? Essentially, this is because many prosecutors and judges are part of these same corruption networks and their interest is to protect these networks, rather than to bring them to justice.

At TOJIL, we are working to overturn wrong rulings through strategic criminal litigation. If we succeed, we can change the result of investigations like the Odebrecht case, which is still unresolved in Mexico. The best example of this powerful tool is the landmark case of Teodoro Obiang, supported by Sherpa and Transparency International France: after more than 10 years, legal standing was acknowledged, a sentence given and assets stolen from Equatorial Guinea, recovered.

What is the next step?

On 23 December 2020, the Executive Secretary of the Inter-American Human Rights Commission rejected the case, potentially due to the nexus between corruption and human rights not having been well-established within this Court.

However, this landmark case aligns with many of the positions argued by the Inter-American Commission in the 2019 Corruption and Human Rights Report.

TOJIL has now requested that the petition be re-analyzed by the Commission. If the case is taken on, it will be a crucial first step in recognition of the fact that corruption encompasses human rights violations, and that all victims are entitled to compensation.