Saturday, February 15, 2014

Military trials of civilians -- Mexico

From its earliest jurisprudence, the Inter-American Court of Human Rights (“I/A Court”) has maintained that to prosecute ordinary crimes as though they were military crimes simply because they had been committed by members of the military breached the guarantee of an independent and impartial tribunal.[1]

The Mexican legal system included two contradictory provisions: Article 13 of the 1917 Mexican Constitution, which prohibited military courts from trying members of the military for crimes that involved civilians,[2] and Article 57 of the 1933 Mexican CMJ, which expanded military jurisdiction to cover any act committed by a member of the military.[3]  Despite the supremacy of the Constitution over other laws in the Mexican legal system, in practice, civilian courts routinely ceded jurisdiction to the military courts when a member of the military was involved. 

The case of Radilla Pacheco v. Mexico was the first case to come before the I/A Court against Mexico concerned with the expansion of military jurisdiction.  On August 25, 1974, Mr. Radilla Pacheco was arrested and forcibly disappeared by members of the Mexican Army.  His family denounced his disappearance before the state and federal authorities, to no avail.  An NGO then presented this complaint before the Inter-American Commission on Human Rights (“Commission”) alleging that Mexico had failed to conduct an effective investigation to establish his whereabouts or to punish those responsible. 

In 2005, the Federal District Court in Guerrero ordered the arrest of Lt. Col. Francisco Quiroz Hermosillo, who was in charge of the militarized area when Radilla Pacheco was arrested.  That Federal District Court, however, ceded jurisdiction to a military court, characterizing the offense as one of “military discipline, in accordance with Article 57 of the CMJ.”   Radilla Pacheco’s relatives challenged the transfer of jurisdiction, also to no avail.  On November 29, 2006, the military court dismissed the case due to the “extinction of the criminal action” following the death of the defendant on November 19, 2006.  On July 27, 2005, the I/A Commission issued its  Report on the Merits, concluding that Mexico was responsible for violating, inter alia, the rights to life, personal liberty, humane treatment, fair trial, and judicial protection.

The Mexican Government failed to comply with the Commission’s recommendations.  Accordingly, on March 15, 2008, the Commission submitted the case to the I/A Court and on November 23, 2009, it ruled that the forced disappearance of the victim at the hands of the Mexican military, and the transfer of the investigation of the crime from civilian to military jurisdiction, violated, inter alia, articles 8 (due process) and 25 (access to justice) of the American Convention on Human Rights. The I/A Court found that “upon expanding the competence of the military jurisdiction to crimes that are not strictly related to military discipline or with juridical rights characteristic of the military realm,” the State had violated the rights of the next of kin to a competent tribunal and to a recourse that allowed them to contest the exercise of military jurisdiction.   In order to prevent repetition of this violation, the I/A Court ordered Mexico to “adopt, within a reasonable period of time, the appropriate legislative reforms in order to make Article 57 of the CMJ compatible with the international standards in this subject and the AC.”  In compliance, the Mexican Supreme Court declared the relevant part of Article 57 unconstitutional on August 21, 2012, and the Congress is in the process of amending the CMJ.

[1]    I/A Court H.R., Almonacid-Arellano et al. v. Chile, Judgment of September 26, 2006, para. 131. (“The Court has established that in a democratic State, the military criminal jurisdiction must have a restrictive scope and must be exceptional and aimed at the protection of special legal interests related to the functions that the law assigns to the Military. Therefore, it must only try military men for the commission of crimes or offenses that due to their nature may affect military interests. In that respect, the Court has held that when the military courts assume jurisdiction over a matter that should be heard by the regular courts, the right to the competent judge is violated, as is, a fortiori, due process of law, which, in turn, is closely linked to the right of access to justice.). 
[2]   Article 13 of the Constitution provides that there shall be no special courts and that military jurisdiction may not be extended to civilians.
[3]   Article 57 of the Mexican CMJ defines “crimes against military discipline” to include “those ... committed by soldiers during times of duty or based on the actions of the same.”  

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