It is illegal to reveal bank secrets in the case of FCCyT academics

In the month of August the General Prosecutor of the Republic (FGR) requested a judge from the Federal Center for Social Readaptation Number 1 El Altiplano an arrest warrant against 31 scientists for the crimes of embezzlement, illicit use of attributions and powers, operations with resources of illicit origin and organized crime. The event caused astonishment to the academic community who expressed their indignation in different ways, requesting the prosecution to desist from the criminal action.

The antecedent is that the National Council for Science and Technology (Conacyt) stated that “during the period from January 2003 to June 2019, the coordinators of the civil association Foro Consultivo Científico y Tecnológico AC” spent said resource on the payment of national and international trips, purchase of a residential house, salaries (… ) ”, Among other accusations.

Almost three months later, and despite the fact that Gregorio Salazar, Specialized District Judge in the Accusatory Criminal System of Almoloya de Juárez, indicated that it was not possible to analyze the crimes of operations with resources of illicit origin and organized crime, since that the Forum operated “in accordance with what was determined” by the ConacytThrough its Organic Statute in which “it is constituted as a civil association to carry out its acts,” the persecution continued and the prosecution again requested the arrest warrant in September.

Within the narrative of the FGR and its 24 evidence data to inquire about the illegality of the events on various occasions (point 13,14, 16,17,19, 23) refers to the obtaining of information protected by bank secrecy, this despite that as a civil association, the Forum was empowered to have its own patrimony.

Item 13 of the evidence, justifies the fact by explaining that the resolution of January 22, 2021, was issued by a Specialized District Judge in Mexico City, based in the southern prison, within the investigation technique 16 / 2021, for which “the obtaining of the information” was authorized, then there is another one of April 27, within the investigation technique 195/2021, through which information related to checks issued from financial instruments was authorized, however , the evidence of the authorizations does not appear in the folder.

About, The Economist he consulted an expert lawyer on the matter, who explains “To inquire about the legality of the use of resources, bank secrets were declassified, but the investigation folder does not evidence the procedure for that declassification. There is no record of the audiences that endorse it, this calls into question the legality with which these data were obtained ”.

Looking for the ways where the Forum obtained money, in the file of more than 20,000 sheets formulated by the FGR it is mentioned that three hearings were held where only the public prosecutor was present to achieve declassification of the accounts, however there is no endorsement of said meetings , “This was only mentioned by the Prosecutor’s Office, so it is not known if the correct procedure was followed to obtain the information, from there you can observe vices in the expert opinion and the folder in general.”

The specialist, who asked to remain anonymous, explains: “to give a criminal investigation report, that is to say, the action of an investigative police officer, you cannot access bank details, this can only be done through court orders (…) Although the document mentions that hearings were held to declassify bank secrecy, this does not appear in the minutes. Even with everything and that the hearings are closed and oral, there must be a minimum record stating the resolution or approval of the judge (…) This indicates at least a violation of the procedure ”.

To inquire about the legality of the use of resources, bank secrets were declassified, but the investigation folder does not show the procedure for this declassification. There is no record of the audiences that endorse it, this calls into question the legality with which these data were obtained ”, he adds.

One of the expenses that are analyzed is the acquisition of a real estate in the name of the Civil Association itself, which was acquired in 2015 through a sales contract in which the legal representative intervened and who at the time acted as technical secretary. However, the purchase of this property was made with its own resources and after the authorization of its board of directors made up of 17 institutions. This is at least one example of how the CA has shown to have all the documentation in order.

Legal basis for data protection

Banking secrecy consists of the protection that banks and financial institutions must grant to the information regarding deposits and fund-raising of any nature that they receive from their clients. It is understood that this information is part of the privacy of the clients of the financial system. If this rule did not exist, any person could request in a bank, for example, information about the movements of a person’s accounts.

Banking secrecy is regulated in article 117 of the Credit Institutions Law, so that credit institutions, in no case may give news or information about deposits, operations or services but to the depositor, debtor, holder, beneficiary , settlor, trustee, principal or principal, to their legal representatives or to those who have been granted power to dispose of the account or to intervene in the operation or service.

For this purpose, the “System of Attention to Authorities Requirements” (SIARA) was created, so that when requested by the judicial authority whenever there is a lawsuit in which the owner or, where appropriate, the settlor, trustee, trustee, principal , commission agent, principal or agent is a party or accused, the credit institutions can give this information.

The procedure for attending to requirements and orders for securing and unlocking accounts follows the following line: Authority, information and documentation requirements, assurance and unlocking of accounts, CNBV Reception, Analysis and ruling of the requirement, Request for information from entities via SITI , reports from entities via SITI (negative), Physical (positive, review of documentation and compliance with financial secrecy, sending information, receives the authority.

Suspension of transfers to the FCCyT

The resources that the Forum received for its operation were mandated by article 38 of the Science and Technology Law. In an illegal and unilateral act, Conacyt suspended transfers since 2019, which led to a federal judge on January 10, 2020, deciding to grant an amparo to the FCCyT and ordering the Council to hand over economic resources, but this did not happen. On the contrary, Conacyt changed its statutes to create an internal consultative forum and replace the FCCyT, with which the protection granted to the Forum was without support and on July 14 of this year, the Supreme Court of Justice of the Nation considered dismissing the case and closed the litigation.

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