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When Mexico put 26 high-profile suspected cartel members on a plane to the U.S. this month to face charges including drug trafficking and money laundering, they did not not use normal extradition proceedings. Instead, the suspects were expelled under a national security law.
Mexican authorities used that method, because many of the suspects had managed to delay the processing of their cases by exploiting a legal mechanism called the “amparo.” Common across the Spanish-speaking world, the amparo is designed to protect individual rights against abuses by the state. It allows individuals and legal entities to challenge any law, government action, or judicial decision if they believe it infringes on their constitutional rights.
However, experts say people charged with serious crimes have used amparos to prolong trials, delay extraditions, and avoid high-security prisons.
To overcome the abuse of the amparo in these cases, and under increased pressure from the Trump Administration, the Mexican government resorted to its more draconian national security powers.
In a televised press conference about this month’s expulsions, Mexico’s security minister, Omar García Harfuch, bemoaned the abuse of the amparos and said the suspects’ ongoing presence in his country meant they were more able to coordinate crimes from prison.
“Many of them had obtained amparos in order to remain in low-security prisons, and others [...] expected to receive similar rulings that would facilitate their transferral to lower security prisons, increasing the risk of continuing their criminal operations or even escape,” Harfuch said. “There were also lawsuits and appeals seeking their early release.”
“It’s important to point out that this action was taken as a way to prevent them from continuing to order kidnapping, extortion, homicides and other crimes from prison,” he added.
'Broken' Justice System
Luis Pérez de Acha, a prominent expert in constitutional law, told OCCRP that Harfuch’s press conference comments were an admission of serious problems in Mexican justice, which could be due to incompetence or corruption among prosecutors or judges.
“Harfuch’s declaration is an express recognition that Mexico’s criminal justice system is broken,” he said. “We can agree or disagree with the explanation, but there’s a recognition of the structural failures.”
Raúl Tovar, head of public relations for the Federal Attorney General's Office, told OCCRP that judges don't base their amparo rulings on evidence from prosecutors, but rather according to the citizen’s rights. Tovar did not comment on the apparent exploitation of the mechanism by alleged cartel members and others accused of serious crimes.
The amparo — which means “protection” in Spanish — was first introduced into law in the constitution of the then-independent Republic of Yucatán in 1841. Mexico itself adopted the amparo law in 1861, thirteen years after Yucatán rejoined the federation. Over the following century and a half, 17 other Latin American countries followed suit by introducing their own version of the law.
In Mexico, amparos have been used in all sorts of cases from environmentally-destructive construction projects to the decriminalization of abortion to detention in a particular prison.
To make use of the amparo, the plaintiff must file a complaint with a district court judge or circuit court against the public authority in question. That could be an individual official, state institution, or both. If the judge accepts the complaint, both parties present their case at a public hearing.
If the judge rules in the plaintiff’s favor, they can order the offending action, law, or court decision to be suspended or overturned. The plaintiff can appeal against a negative ruling with a further amparo.
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At times, the amparo has been used in Mexico as intended – to protect the rights of victims of miscarriages of justice. In 2019 it was used to help secure the release of six indigenous Nahuas after around 15 years’ wrongful imprisonment over land and water conflicts. Just under a decade earlier, an amparo led to the release of three Otomí women who were wrongfully convicted of kidnapping six Mexican Federal Investigation Agency agents.
But too often, it’s alleged serious criminals who have benefited from amparos.
Among those sent to the U.S. recently was Enrique Arballo Talamantes, who had been serving a combined 72-year sentence for kidnapping and murder and was wanted by the U.S. for alleged heroin trafficking. Talamantes had successfully tied up his extradition and other legal processes by filing 51 amparos against a broad array of public officials and institutions including the president, the attorney general, the secretary of foreign affairs, judges, prosecutors, and courts.
Alongside Arballo Talamantes on the plane was Abigael González Valencia, an alleged leader of the Los Cuinis Cartel, who had been fighting extradition since his arrest in 2015. In that time, he launched 62 amparos — as well as 12 legal complaints and two appeals, also targeting the directors of prisons where he’d been held.
Their amparos argued that it would be unconstitutional to extradite them for reasons such as the U.S. death penalty — Mexican law prohibits extradition in such cases — and the legal convention that someone cannot be tried twice for the same crime.
Harfuch, the security minister, said during his press conference that, as well as the 26 men sent to the U.S. two weeks ago, Mexico in February expelled two alleged former members of the Zeta Cartel who had managed to delay their extraditions 54 and 79 times. Harfuch said the pair were responsible for the murder of 17 public servants working in federal prisons, where they continuously threatened staff, though reporters were unable to verify the claim.
Meanwhile, Florian Tudor, the alleged leader of the violent Riviera Maya Gang that was exposed in a 2020 OCCRP investigation, has spent years delaying extradition to his home country of Romania via an onslaught of more than 130 amparos and 22 legal complaints since 2019. Earlier this month, he was transferred from Mexico’s highest security prison to a social rehabilitation center. A day after arriving at the center, he used a fresh amparo to accuse it of subjecting him to torture and sexual harrasment.
Reporters sent requests for comment to representatives of the men expelled by Mexico wherever contact details were available, but did not receive any replies. Florian Tudor could not be reached for comment.
Although amparos are free, their technical complexity means expensive specialised lawyers are usually needed to successfully file them. Civil society groups have had success filing them for victims of injustice, but more often, according to constitutional law expert Pérez de Acha, “only those that have the money to pay for specialized lawyers are those that benefit from the amparo.”
Jorge Peniche, an associate lawyer from the human rights accountability group Guernica 37, said that this has exacerbated Mexico’s impunity gap, in which the perpetrators of serious crimes walk free while regular people can only access the amparo in theory.
“The amparo is ‘free’ in quotation marks, but at the end of the day, it’s biased due to the complexity and cost of accessing justice in Mexico,” he said. “It’s crystal clear that not everyone can make use of it.”
