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Wednesday, 15 August 2012

Cynthia Vanier case: Canada sends Diplomatic Note to Mexican officials as delays pile up



After over a week of delays and false starts, in which officials within Mexico’s judicial system were either unable or unwilling to offer an adequate translator for Cynthia Vanier, thus making it virtually impossible for her legal team to cross-examine witnesses and evidence, the Canadian government has sent a Diplomatic Note to Mexican officials expressing its concern.

Ms. Vanier, as readers of this blog are well-aware, is the Canadian mediator accused by the Mexican government of being the ring-leader in a plot to smuggle Saadi Gaddafi, fallen dictator Moammar Gaddafi’s third son, from North Africa to Mexico.

Specific to Ms. Vanier, the main purpose of the hearings is for her defense team to cross examine the prosecution’s evidence. Other defendants in this case are Gabriela de Cueto, who is in the same prison as Ms. Vanier, and two men: Pierre Flensborg and Jose Luis Kennedy Prieto, both of whom are in jail in Veracruz.

Friday July 27 was supposed to be the beginning of two weeks of hearings (audiencias) in Chetumal, where Ms. Vanier is imprisoned, with video link-ups to Mexico City.  The Friday July 27 hearing was cancelled, however, due to the fact that the court in Chetumal failed to provide an official translator.

This is an important issue, as Ms. Vanier does not speak Spanish. It is also something that the court in Chetumal is well aware of, given that a ruling in early May by a judge in Mexico City ordered that Ms. Vanier have access to a translator, as per her rights under the Vienna Convention, the Mexican Constitution, and the Mexican Penal Code.

Then on Monday, July 30, when the parties again showed up in court, the same thing happened. Given that the hearings require the participation of a judge in Mexico City, and everyone’s time was being wasted, that judge decided to cancel the entire week’s audiencias until an official translator could be engaged to fulfill the legal requirements.

Hurricane Ernesto also arrived on their doorstep, resulting in further delays. In total, nine hearings were cancelled and had to be rescheduled. The cancellations now mean that this part of the legal process will go on through the first week of September.

In response to concerns expressed by Ms. Vanier’s husband, Pierre, Canadian consular officials raised the translation issue with the Mexican Secretariat of Foreign Affairs, seeking their assurances that the trial would progress without untimely delays and that an official translator would be provided. To that end, the Canadian Embassy in Mexico City sent a Diplomatic Note to the Mexican Ministry of Foreign Affair expressing the same in writing. 

For the first time in this entire process, which has now dragged on for almost eight months, a Canadian consular official attended a proceeding. The official attended a video conference in Mexico City, but appears to have left half-way through the cross-examination of the second witness.

Given the international significance of this trial, the slow uptake on the part of the Canadians is hard to understand. It may be that they were shamed by the judge in Mexico City, or that there is internal pressure on the Canadian side. There appeared to be no specific or practical purpose to the presence of the consular official – he was likely there simply to make a point as to the Canadian government’s concern with regard to the procedural delays.


Not the real thing but...so far the case has 21 volumes of at least 500 pages each 


The hearings so far

During the hearings Ms. Vanier identified the female officer who elbowed her in the ribs, which has resulted in ongoing kidney problems. This assault has been a part of Ms. Vanier’s defense since the beginning.

Two female officers indicated that Ms. Vanier presented a false voter ID card upon her arrest. Ms. Vanier maintains that she never possessed any such document.

During the hearings, the male officer who was presented as the English-speaking officer during her initial detention was not, according the Ms. Vanier, the officer who actually detained her. This officer substitution, which amounts to false witness, was pointed out by both Ms. Vanier and Ms. De Cueto during the hearing.

According to the defense, this substitute officer also wrote the arrest report, thus invalidating the government’s claim as to what happened during and directly after the arrest.

The officer was known to Ms. Vanier, however, as it was he who wanted to interrogate her at 4 am in the Mexico City detention centre. At the time, Ms. Vanier was requesting medical assistance as she was vomiting and passing blood due to her injured kidney.

According to Ms. Vanier, this officer pushed and humiliated her, falsely claiming that her lawyer wanted some “signature samples”.

It is believed that the reason Mexico’s Attorney General’s office (PGR) insists that this man is the arresting officer is because he speaks some broken English. According to Ms. Vanier, the arresting officers spoke no English.

Reports from Mexico would indicate that Ms. De Cueto, Ms. Vanier, and their lawyer did a decent job of tarnishing the credibility of this officer because, to quote a witness, Ms. Vanier’s and Ms. de Cueto’s “last statement for the record was that of course the officer could not remember all the details because he was not there.”

Status of other hearings

The hearing for Gary Peters, Ms. Vanier’s bodyguard during her SNC Lavalin-sponsored fact-finding mission to Libya in July, 2011, has not been scheduled as he has a right to be protected from self-incrimination (more on that in a later post).

The hearing for Christian Esquino (aka Ed Nuñez), who leased an aircraft to San Diego-based GG Global Holdings (owned by Greg  Gillispie), which was then brokered to Ms. Vanier for her trip to Libya, was delayed due to hurricane Ernesto and will now be held on September 7th. Mr. Esquino is wanted for questioning by the United States Drug Enforcement Administration. For more on him go here. His wife Bertha, who is (or was) Gabby de Cueto’s best friend, will also be cross-examined.

The judge can then take as long as required to decide if some, none, or all charges apply to Ms. Vanier and Ms. de Cueto. As it stands, a judge has already thrown out the organized crime charges against the co-accused men in Veracruz. If the audiencia judge accepts that ruling, then it would apply to all four.

The interconnection of charges is complex. Organized crime, for example, requires more than two participants, and given that that charge was thrown out for the two men in Veracruz, then Ms. Vanier and Ms. de Cueto could not be part of a criminal group. With that gone, the PGR then also loses intent to traffic, because you need an organized crime charge for that one to stick.

For organized crime, there also has to be a history of such activity. This is why it is crucial for the PGR to establish that the fact-finding trip to Libya was actually an extraction attempt. That will be tough to prove, particularly because Gary Peters is on the record saying that the Libya trip was not for that purpose.

Given that the Anonymous emails cannot be certified as evidence, all that would then be is left is testimony from Christian Esquino, a convicted criminal. Mr. Esquino claims that he heard Mr. Gillispie and Ms. de Cueto discussing the Gaddafi a plot. He also at one point claimed to have taped conversations of Mr. Gillispie discussing the plot, but this appears to have been a fabrication as the tapes have not been entered as evidence.

Other proceedings

Mexico’s National Commission of Human Rights is reviewing Ms. Vanier's claim. They can announce a hearing at any time, which would then put the whole process on hold. If they rule in favour of Ms. Vanier there could be two results: she is released and dismissed from the process; or she is released and the process continues with her as a defendant. She could feasibly be allowed to return to Canada while the process continues, but the PGR could petition that she remain in Mexico. 

As some readers might recall, Ms. Vanier actually won an appeal in May. At that time, the appellate judge in Mexico City ruled that the proceedings against Ms. Vanier and Ms. de Cueto were to be annulled. But this decision was over-ruled by the judge in Chetumal – essentially bringing the entire process back to square one. It is La politica’s understanding that Ms. Vanier’s defense team has filed an amparo (injunction) with regard to this, as there appears to be no constitutional provision for such a decision. (For more on how amparo works in Mexico, see this short piece on Bruce Beresford-Redman).

Yet another wrinkle in the legal landscape is that SIEDO, (Subprocuraduría de Investigación Especializada en Delincuencia Organizada, or the Assistant Attorney General's Office for Special Investigations on Organized Crime), has submitted its appeal for the Veracruz decision against the two men to the same Mexico City judge that heard – and ruled favourably – on Ms. Vanier in May. The judge may be waiting on Ms. Vanier’s defence team’s amparo to help her sort things out; she is almost certainly trying to figure which way the political winds are blowing. The PGR could be offering everyone a way out, or it could be playing hardball. It is impossible to tell at this point.

Status of co-accused

Pierre Flensborg filed an amparo instead of an appeal in February. No decision has been rendered, even though the constitutional time limit has passed.

Jose Luis Kennedy Prieto has also filed an appeal. There has been no decision on that, either, despite the fact that the constitutional time frame has passed.

The PGR filed an appeal against the decision rendered by the Veracruz court when it dropped the organized crime charges against Kennedy Prieto and Flensborg. The time frame has passed here as well with no decision.   

Gregory Gillispie, who lives in San Diego, lost his amparo attempt, but that decision is being appealed. If there were a process underway in Mexico, a judge would have had to appoint a public defender to represent Mr. Gillispie, and that is not the case. There has been no effort to try Mr. Gillispie in absentia, or to extradite him. To our knowledge, he has not even been questioned.  

And the loose ends

There are other outstanding issues. In April the trial judge in Mexico City ordered the return of Ms. Vanier’s passport. Mexican authorities informed the Canadian embassy in May that Ms. Vanier’s passport is being held as part of the legal file. The Canadian government has given her the option of cancelling the passport, and then working with Passport Canada to secure new travel documents.

Personal jewelry that Ms. Vanier had on her person has gone missing. The Canadian embassy has followed up with Mexican authorities regarding the whereabouts of her personal belongings. According to a letter received in January, Mexican authorities indicated that they have in their possession one suitcase with personal items. What those items are, however, we don’t know.

Now that Canadian consular officials in Mexico have also established more rigorous contact with Mexican court officials, things might move along. Apparently the Mexicans have indicated to the Canadian embassy that they are making every effort to ensure that a translator is available for the hearings.

The Canadian embassy has also raised the human rights issues put forward by Ms. Vanier with the Mexican authorities, who have assured them that investigations into her allegations were being conducted. And Canadian government officials have told Ms. Vanier’s family that Mexican government officials have made assurances that her rights will be respected while under Mexican detention. La politica leaves it to the readers of this blog to determine what, if any, substance there is that.

(TE Wilson is the author of Mezcalero, a Detective Sánchez novel.)


Twitter: @TimothyEWilson
Email: lapoliticaeslapolitica [at] gmail [dot] com

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10 comments:

  1. What a wonderful job you do keeping us informed. Looking forward to next post. Thanks.

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  2. Why is there no naming of the Judges in the case? They must have names. Also, will the judges in this case be in office when the new government is seated?

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    1. Hi Heek. Got you confused with Hans! I do have one name for a judge, but am waiting on feedback from the Vanier family. In Mexico the judges are usually known only by the court and a number. They hold ALL the power. They are not used to transparency/scrutiny, and it can be risky to pressure them. So...I will probably post at some point but not now.

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    2. Yes, the judges will likely still be around. Supreme Court judges are appointed for life by the president...They can be removed only by a guilty verdict after impeachment. The other justices are appointed for six years by the Supreme Court. Senate approval is required for Supreme Court magistrates, but you can nonetheless see how the system is "top down" - i.e., it favours the executive branch. As a political culture, and within the power structure, it means the judges listen to the president, and don't piss him off. This, in my opinion, is Vanier's challenge: Calderon is heavily invested in her incarceration, and the judges know it. With Pena Nieto things might change (he assumes office December 1st).

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  3. I agree with Toe ... excellent reporting, better than any other coverage available in the mainstream CDN dailies. Congrats! This is such a complicated story... I'm left wondering whether you know of any similar legal nightmares anyone has gone through in Mexico, outside of those involving the drug trade.

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  4. Hi Tim, reading myself through your blog regarding the Vanier case. In - under hearings so far - you mention: "reports from Mexico....."; whose reports are these and in what form have you seen them?
    I also assume that a parallel Amparo has been filed to annul all charges on the basis of complete innocence.
    The process described so far jives with my experience in the Kulisek case.
    Is there a way i can contact you by e-mail?
    Thanks, Hans Denee

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  5. Hi Hans. Thanks for your feedback. I have some info on the judges but am waiting for the ok from the Vanier family. I realize this may seem odd, but I often defer as I don't want to add stress or increase the political risk to Ms. Vanier (and this case IS very political). My Mexican sources are not quotable, as I have put individuals at risk in the past by using names. Suffice to say we are talking about family and the legal team down there.

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  6. Oh, and for email you can reach me at

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    Replies
    1. lapoliticaeslapolitica [at] gmail [dot] com

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  7. Keep us updated Tim. Our Cyndy needs reliable reporting. Thanks
    Cath
    "Cyndy's friend"

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