A note dated April 14, 1937, has now been received from the Foreign
Office stating that in view of the legal considerations advanced in the
document enclosed with the note, the Mexican Government is unable to
give process to the claim. Copies of the note and its enclosure, with
translations, are enclosed.
It is noted that the position of the Mexican Government is based on
purely legal, or even legalistic, grounds.
[Subenclosure—Translation]
The Mexican Ministry for
Foreign Affairs to the American
Embassy
This Ministry proceeded to obtain information in the case from both
the Government of the State of Tamaulipas and the Ministry of
Gobernación, from which information it appears, briefly, that:
On June 10, 1934, Valero Rodriguez, of Mexican nationality, employed
as a Second Class Officer of the Customs Guard, murdered, in the
city of Matamoros, Tamaulipas, the American citizen Antonio
Sustaita, a fireman of the City of Brownsville, Texas.
The corresponding trial having been opened before the Court of First
Instance of the said city of Matamoros, the declarations were taken
of the witnesses who, it can be said, were divided into two groups,
one made up of the friends of the murdered man and the other made up
of the friends of the murderer. Following a careful examination of
these declarations, the following conclusions are reached:
There was a quarrel in which Sustaita roughly struck Valero, who was
unarmed. Valero withdrew from the saloon in which this quarrel took
place to his home where he washed himself and changed his
bloodstained clothing and, after arming himself with his pistol, he
returned to the saloon in question where Sustaita still was.
According to the friends of the latter and to the murdered man,
Valero arrived with pistol in hand and shot him. According to the
friends of Valero, the murderer, on seeing Sustaita and fearing a
new attack on his part, drew his pistol, at which moment it went off
accidentally and wounded the said Sustaita.
The Judge who tried the case rendered a decision considering Valero
guilty of the crime of homicide, and sentenced him to twenty days’
minor arrest, which is the minimum prescribed by the Penal Law. This
sentence was carried out because the parties interposed no recourse
whatever against it. In accordance with article 409 of the Code of
Civil Procedures of the State of Tamaulipas, the Superior Tribunal
of Justice of the same State reviewed the sentence in question with
a view to determining whether there were grounds for responsibility
on the part of the sentencing Judge (para exigir
responsdbilidades [Page 705] al
Juez sentenciador), and declared that there were none.
The relations of the murdered man did not present themselves during
the trial to constitute themselves a party in the proceedings.
From the facts indicated above, and with reference to the complaint
and request for indemnity of the Embassy of the United States, the
following legal considerations suggest themselves (se desprenden):
1. Neither the Judicial procedures pursued, nor the sentence
pronounced can be reviewed or modified by the administrative local
or federal authorities.
2. Nor can the sentence be modified by judicial means, because no
recourse was interposed against it and it has therefore remained
final.
3. Also, it is not possible to subject Valero to a new trial because
the Mexican Constitution prohibits expressly the trying of an
individual twice for the same offense.
4. With respect to the complaint of a denial of justice, resolved by
the American Government in the form of indemnity in money, and which
can be based on the principles of International Law and on the last
part of article 32 of the Law of Nationality and Naturalization, the
following should be stated:
In general, it should be held that it is lawful to consider and
accept a case of denial of justice only when such denial of justice
causes damage to a foreign individual or State. If this direct
damage does not exist, the action of denial of justice should be
considered ineffective (ineficaz), based on
the principle that where there is no interest there is no
action.
In the matter of the administration of penal justice, the failure to
impose adequate sanction for the commission of a criminal act upon
the person of a foreigner causes no direct damage whatever to the
victim of the crime nor to his Nation, because the imposition of the
penalty is not based on the satisfaction of individual or social
vengeance, nor has it as its object the reparation of the personal
or collective harm which the offense may have caused.
Consequently, even supposing that it should be admitted that in the
present case the penal sanction lawfully corresponding to the crime
was not imposed on Valero, since this omission causes no direct
damage either to the murdered man or to the United States of
America, this Nation lacks the right necessary to justify (or “the
legal basis necessary for”) its denial of justice action and,
therefore, to resolve this action in the form of an indemnity in
cash.
Neither could the action in question be based on the general interest
derived from the principles of universal justice, because this
interest could not go beyond the possibility of demanding personal
responsibility on the part of the officials charged with the
administration of justice in the State of Tamaulipas in case of
failure to comply with their obligations, not applying duly the
appropriate legal precepts, [Page 706] for the exercise of this power corresponds exclusively to the
Mexican State as a sovereign entity.
Now then, along with the penal responsibility of a delinquent, is the
civil responsibility which obligates the delinquent to make
reparation for the damage caused by the offense which he committed
and which is satisfied by the corresponding indemnification of the
persons to whom the law grants this right and who in the present
case are the nearest relations of the murdered man. Within this
concept, since such persons have not presented themselves to
exercise their right, it is in order to recommend that they do so,
fulfilling all the requirements prescribed by the Mexican laws
applicable to the case. If within the judicial procedures that may
follow the exercise of this right, there should occur a denial of
justice by the courts of the country, after all legal means had been
exhausted, then the diplomatic action attempted by the Embassy of
the United States would be in order (sí
procedería).
