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TechnoratiII. Mexico’s Laws on Military Justice
The Mexican military routinely asserts jurisdiction over cases involving allegations of serious violations of the rights of civilians. But Mexico’s Constitution and the Mexican Supreme Court do not require this outcome. On the contrary, the text of the Constitution, its interpretation by constitutional law experts, and a recent and binding Supreme Court decision militate in favor of civilian jurisdiction in such cases. And, in fact, civilian authorities have successfully prosecuted military abuses, as attested to by the Castaños case, detailed in chapter V of this report. The military’s practice of asserting jurisdiction in cases involving army abuses against civilians also disregards the recommendations of several international bodies that have specifically addressed the issue.
The assertion of military jurisdiction in these cases is problematic because of a built-in conflict of interest: the military is sitting in judgment on itself, and the Mexican military justice system is not structured to address alleged violations of the rights of civilians independently and impartially. The secretary of defense wields both executive and judicial power over the armed forces. Military judges have little job security and may fear that the secretary will remove them or otherwise sideline their careers for issuing decisions that he dislikes. Civilian review of military court decisions is very limited. To make matters worse, there is virtually no public scrutiny of, or access to information about, what actually happens during military investigations, prosecutions, and trials, which can take years.
Overview of the Military Justice System
The military justice system consists of the Military Attorney General’s Office (Procuraduría General de Justicia Militar, PGJM), the military’s Public Defense Office, and military judicial bodies, which include judges, ordinary and extraordinary courts-martial, and the Supreme Military Tribunal (Supremo Tribunal Militar, STM).[2]
The PGJM is charged with investigating all cases that enter the military justice system. A military prosecutor may press charges (ejercitar la acción penal) against a member of the military or he may close the investigation and send it to the archives if there is not enough evidence to charge the accused with a crime—a decision that must be approved by the military attorney general.[3] Throughout the investigation and judicial process, a military public defender or a private lawyer, who can be a civilian, defends the accused.[4]
First instance tribunals may consist of military judges or “ordinary courts-martial,” which are collegiate bodies that determine if the accused is guilty but do not set the sentences.[5] Military judges carry out all procedural steps of the judicial investigation in every case.[6] If a military prosecutor accuses a member of the military of a crime or offense that is punishable with a sentence of two or more years in prison, the judge must ask his superior to convene an ordinary court-martial.[7]
Once the prosecutor has pressed charges, a military judge does a preliminary analysis of available evidence to decide whether there should be a judicial investigation.[8] If he thinks there is enough evidence, he must issue an arrest warrant (auto de formal prisión).[9]
The judge then conducts the investigation (instrucción) through written and oral proceedings. The written submissions are not public, but the oral proceedings include hearings that are open to the public.[10] However, in practice, access to military installations where these hearings take place is difficult.[11] Based on the evidence and arguments presented by the prosecutor and defender, the judge determines whether it is necessary to convene a court-martial. If he deems it is not, the judge will directly issue the ruling deciding the case.[12]
If an ordinary court-martial is convened, its members carry out a series of public and oral hearings during which they can review all the evidence that was previously submitted to the judge, and can accept new evidence if the president considers it necessary.[13] In the open hearings, the court-martial members cross-examine witnesses, and the accused may directly address the court-martial.[14] The court-martial then deliberates in closed sessions to decide on the culpability of the accused.[15] Based on the court-martial’s decision, the judge will issue the ruling and determine the appropriate sentence.[16]
Military judges’ decisions may be appealed to the Supreme Military Tribunal, which can review legal as well as factual issues.[17] That tribunal’s decisions are subject only to very limited review by civilian courts, as described below.
Applicability of Military Jurisdiction
The Mexican Constitution allows for military jurisdiction only for “crimes and faults against military discipline.”[18] This provision makes sense and is consistent with international law, but only so long as breaches of military discipline are not defined so broadly that they include serious criminal acts against civilians, including rape, enforced disappearances, and related abuses. A key problem in Mexico is that the Code of Military Justice, purporting to interpret the Constitution, establishes a very expansive notion of such offenses that includes “faults under common or federal law… when committed by military personnel in active service or in connection with acts of service.”[19]
Based on this broad definition, the Mexican military has expanded the scope of cases it asserts a right to investigate and prosecute to include serious human rights violations committed by the military against civilians.[20] According to the head of the PGJM, the military investigates all crimes—including serious human rights violations—that are somehow connected to a breach of military discipline, because they must maintain discipline within the Armed Forces.[21] The federal Attorney General’s Office (Procuraduría General de la República, PGR) effectively supports this view by “automatically” sending all cases in which an active-duty member of the military is accused of committing a crime to the PGJM.[22] As this report documents in chapters III and IV, the military has been allowed to initiate criminal investigations into even egregious abuses.
This practice, however, should have been brought to an end by a 2005 Supreme Court ruling that is binding on all judicial authorities, including military ones. Over 30 years ago, the Mexican Supreme Court issued several contradictory and non-binding decisions that did not clearly define when a crime could be committed during or in connection with “active service” and thus erratically sent cases involving civilian victims alternatively to military and civilian courts.[23] But in 2005 the court clearly limited the scope of the provision by defining “service” as “performing the inherent activities of the position that [he or she] is carrying out.”[24] The court did not explicitly state that all military abuses against civilians should be sent to civilian prosecutors and courts but serious abuses such as rape and torture clearly cannot be considered “inherent activities” of the military.
Mexican constitutional law experts also note that the Constitution clearly provides that civilian prosecutors should investigate cases when a civilian commits, or is a victim of, a crime.[25] The Constitution states that “under no cause and for no circumstance may military courts extend their jurisdiction over persons which are not members of the Armed Forces” and that “when a crime or a fault involves a civilian, the case shall be brought before the competent civil authority.”[26] While the language seems clear (and prominent constitutional law experts believe it to be so), the Supreme Court has equivocated. It has ruled that civilians who commit crimes must always be tried by civilian courts, but has not said the same when it comes to cases in which the civilian is the victim rather than the perpetrator.[27] Indeed, the court has occasionally issued non-binding rulings allowing military courts to investigate cases involving civilian victims.[28]
Perhaps the best evidence that it is possible for military abuses in Mexico to be investigated by civilians is that, in fact, it has happened. This report examines in detail in chapter V a case in which soldiers who raped and sexually abused women in Castaños, state of Coahuila, were prosecuted by civilian prosecutors and sentenced by a civilian judge. The Coahuila state attorney general takes the view that federal prosecutors should investigate a case if a military official commits a crime against a civilian while on duty, given that soldiers are federal officials; state prosecutors should do so if a military official commits a crime against a civilian while off duty; and military prosecutors should only investigate cases in which soldiers who are on duty commit offenses strictly against military discipline.[29] Moreover, the government of Mexico has agreed to send specific cases of military abuses that had originally been investigated by military prosecutors to the civilian justice system after the victims and their families went to the Inter-American Commission on Human Rights (IACHR).[30]
Even if the Code of Military Justice suffered from some ambiguity regarding when military jurisdiction is applicable, it should be interpreted in light of Mexico’s international obligations, which are clear.[31] The Mexican Supreme Court has ruled twice that Mexico is bound by its international obligations and that the provisions of treaties ratified by Mexico take precedence over federal and state statutory law (but not over provisions of the Constitution).[32]Therefore, if in doubt, courts must adopt an interpretation of federal and state laws that is compatible with international law, particularly in cases involving human rights.[33]
Structural Deficiencies
The military justice system lacks the necessary safeguards to ensure judicial independence and impartiality, reliable investigations, and accountability.
The Military as Judge in Its Own Cause
The military justice system is not part of the country’s judiciary. The secretary of defense, a military officer appointed by the president, has both executive and judicial powers within the armed forces.
The secretary of defense is charged with directing the armed forces.[34]Soldiers must abide by due obedience rules.[35]And because of the military’s command structure, the secretary of defense is ultimately responsible for soldiers’ official actions.[36]
The secretary of defense also directs the military justice system.[37] The secretary appoints all military prosecutors, public defenders, and judges, who must all be active members of the military and are hierarchically below (and must respond to) the secretary.[38]The secretary also has the power to order a military prosecutor to close an investigation, and to issue military pardons when military courts convict soldiers.[39]
Lack of Security of Tenure
Military judges and magistrates do not have security of tenure. The Code of Military Justice does not set a time frame for the appointment of military judges and magistrates. According to senior officials of the Ministry of Defense (Secretaría de la Defensa Nacional, SEDENA), judges and magistrates are, in practice, subject to a “high level of rotation” and usually remain in their posts between one and three years.[40]
Judges and magistrates are subject to the same administrative personnel policies as the rest of the members of the Armed Forces, and may thus be removed “in accordance with the current needs of SEDENA.”[41] And while in the federal and state civilian justice systems there are independent bodies, called judiciary councils (consejos de la judicatura), in charge of sanctioning judges, the Supreme Military Tribunal is in charge of this task within the military justice system.[42]
Under these circumstances, military judges work knowing they might be removed if they issue decisions or rulings that the secretary of defense dislikes.
Limited Civilian Oversight
There is very limited civilian judicial review of decisions adopted by military prosecutors and courts. The military officer accused of committing a crime may request such a review, but is unlikely to do so in cases of grave human rights abuses, and will certainly not challenge decisions favoring him or her.[43] Victims of abuse—who have the clearest interest in moving cases of military abuses against civilians from military to civilian courts—have not been able to challenge the use of military jurisdiction.[44] So when military prosecutors and judges assert jurisdiction over a case of military abuses against civilians, in practice there is very little that civilian officials can do to move the case to civilian courts until the case is dismissed or a verdict rendered.
Senior SEDENA officials told Human Rights Watch that federal judges usually confirm decisions by military courts, arguing that this is a clear indication that the military justice system works.[45] But this argument fails to take into account that federal courts are usually not reviewing the question of whether there should be military jurisdiction in the first place.
In theory, a civilian judge could ask the Supreme Court to decide which court has jurisdiction if both civilian and military courts claim jurisdiction over a case. But this has not happened in recent years because civilian prosecutors routinely send cases to their military counterparts, preventing civilian judges—who do not even know about the cases—from claiming jurisdiction over cases in which serious human rights violations are alleged.[46]
The only remedy available to civilian victims is to request an injunction (amparo). But this remedy is only available in limited circumstances, such as when a military prosecutor closes an investigation or decides not to press charges against a member of the military accused of a human rights violation. And there is nothing the victim can do until the prosecutor formally closes the case, which can take years. In any case, federal courts cannot overturn a military prosecutor’s decision; they can only ask military prosecutors to do their job right. The only way to ensure that military prosecutors comply with such a ruling is to file another request for an injunction, which will once again be sent back to military courts.
Finally, there is no real way to challenge, in civilian court, a Supreme Military Tribunal’s ruling acquitting the accused. Neither military prosecutors nor victims may appeal such a decision.[47] Only the accused could file an injunction in such a case and he or she would be highly unlikely to challenge a decision benefiting him or her.[48]
Limited Transparency
The general public has no way of accessing substantive information about military investigations and prosecutions of military abuses against civilians until there is a final ruling, and there is no way of knowing how long that will take.
The military justice system is mostly closed to the public.[49] Only those who are formally parties to the process—prosecutors, public defenders, the accused, and the victim if he or she decides to cooperate with prosecutors—have access to complete information on the case.[50] In theory, the public can obtain detailed information on the status of cases through victims or their legal representatives, but most victims deeply distrust the military justice system and in practice participate minimally, if at all, in the military proceedings.[51] Indeed, as several cases documented in this report show, many victims and members of civil society organizations distrust military courts and do not want to “legitimize” the process by being part of it.
Military judges and ordinary courts-martial in theory hold “public” hearings, but there is no easily accessible information available on upcoming hearings, which makes it all but impossible for ordinary citizens and journalists to attend. There is no information available on SEDENA’s website as to which cases will be heard in public hearings, nor the dates and times when they will take place. Human Rights Watch called six SEDENA offices—including the PGJM, the Office to Assist Citizens (Oficina de Atención Ciudadana), military courts, and SEDENA’s human rights office—and no one provided specific dates and times of upcoming public hearings.[52]
SEDENA also applies confidentiality norms in a blanket fashion, denying access to meaningful information on the status of investigations into military abuses against civilians, even in the most well known cases. Human Rights Watch submitted 13 information requests to SEDENA on the status of several investigations into egregious human rights abuses documented by the CNDH in recent years. In its responses, SEDENA only provided information on whether an investigation was still open or had been closed. SEDENA provided no further information on the status of open investigations, arguing they are confidential, and refusing to provide even the most basic information, such as the types of crimes being investigated.[53] In some cases, SEDENA even failed to provide information it had provided to the CNDH, and which the CNDH had published in its annual report.[54] (The CNDH itself also refused to grant Human Rights Watch access to information it has on the status of military investigations into these cases.)[55]
Finally, it is impossible to know when the public will learn more about the military investigations and prosecutions.[56] According to senior officials, SEDENA considers information on any case confidential until there is a final judicial ruling that is not subject to any appeal, and they have an “absolute prohibition” on providing information until then.[57]
[2] Organic Law of the Mexican Army and Air Force (Ley Orgánica del Ejército y Fuerza Aérea Mexicanos), http://www.ordenjuridico.gob.mx/Federal/PE/PR/Leyes/26121986(1).pdf (accessed February 2, 2009), art. 28. Code of Military Justice (Código de Justicia Militar), http://www.cddhcu.gob.mx/LeyesBiblio/pdf/4.pdf (accessed January 27, 2009), art. 1.
[3] Code of Military Justice, art. 36.
[4] The Public Defense Office provides free legal defense to all members of the military accused of committing a crime, but the accused may choose to have his or her own defense attorney. Ibid., arts. 50, 51, 98.
[5] All military judges must be lawyers, while an “ordinary court-martial” is formed by five military officers who are not required to be lawyers, but must have a higher rank than the accused. Ibid., arts. 10, 14, 25.
Under exceptional circumstances, such as during a war or when the military is in an occupied territory, the military may convene an “extraordinary court-martial” to try members of the military who commit any crime. These extraordinary courts-martial are formed by five members of the military available in the area, who must have the same or higher rank than the accused, and follow similar proceedings as the ordinary courts-martial. These extraordinary courts-martial are very rarely used. Ibid., arts. 16-23.
[6] Ibid., arts. 617, 618.
[7] Ibid., art. 627.
[8]Ibid., art. 454.
[9]Ibid., art. 515. If the crime for which the member of the military is being accused does not require being held in pretrial detention, the judge will issue an “order to subject [the accused] to criminal proceedings” (auto de sujeción a proceso). Ibid., art. 516.
[10] Ibid., art. 918.
[11] Human Rights Watch interview with Alejandro Carlos Espinoza, professor of military justice, Law School, National Autonomous University of Mexico (UNAM), Mexico City, February 4, 2009. Human Rights Watch email exchange with Santiago Aguirre, lawyer, Centro Prodh, February 10, 2009. A Mexican lawyer collaborating with Human Rights Watch went to military installations on February 18, 2009, and could only enter the Military Camp 1-A after showing her professional identification.
[12] Code of Military Justice, art. 623.
[13] Ibid., arts. 639, 649, 650, 698.
[14]Ibid., arts., 664.
[15]Ibid., arts. 633, 669, 671.
[16]Ibid., art. 677.
[17]Ibid., arts. 67 (III), 822, 823,824.
[18]Political Constitution of the United States of Mexico (Mexican Constitution) (Constitución Política de los Estados Unidos Mexicanos), http://www.scjn.gob.mx/PortalSCJN/RecJur/Legislacion/ConstitucionPolitica/ConstitucionPolitica.htm (accessed January 27, 2009), art. 13: “No one may be tried under private laws or by ad hoc courts. No person or corporation may have any privileges nor enjoy emoluments other than those paid in compensation for public services and which are set forth by the Law. Military jurisdiction prevails for crimes and faults against military discipline; but under no cause and for no circumstance may military courts extend their jurisdiction over persons which are not members of the Armed forces. When a crime or a fault to military law involves a civilian, the case shall be brought before the competent civil authority.”
[19] Code of Military Justice, art. 57(II)(a). The Code of Military Justice refers to two types of “service”: “arms service,” which is any assignment (comisión) that requires the use of firearms to fulfill it, and “economic service,” defined as any assignment that does not require the use of firearms to fulfill it. Ibid., art. 434 (VII) and (VIII). Internal Rules for the Interior Service of the Units, Offices, and Installations of the Mexican Armed and Air Forces (Reglamento para el Servicio Interior de las Unidades, Dependencias e Instalaciones del Ejército y Fuerza Aérea Mexicanos), http://www.ordenjuridico.gob.mx/Federal/PE/APF/APC/SEDENA/Reglamentos/28112005(1).pdf (accessed February 11, 2009).
[20] According to the Code of Military Justice, “the power to decide whether an act is or not a military crime belongs exclusively to military courts. They also determine if an individual is innocent or guilty and apply the corresponding sanctions.” Code of Military Justice, art. 435.
[21] The military applies the appropriate federal or state law to investigate federal or state crimes, but it carries out the investigations, prosecutes the cases, and tries them before military courts. Human Rights Watch interview with General José Luis Chávez García, military attorney general, Mexico City, January 12, 2009.
[22]Human Rights Watch interview with Yessica de Lamadrid Téllez, general director of international cooperation of the PGR, and other PGR representatives, Mexico City, January 13, 2009. The interview was conducted at the Ministry of Foreign Affairs, during a meeting with senior officials of the PGR, the Ministry of Foreign Affairs, the Ministry of Public Security, and the Ministry of Interior.
[23] Under Mexican law, binding jurisprudence may be created in two different ways. The Supreme Court creates binding jurisprudence when it issues five consecutive decisions (called “thesis”) that reach the same conclusion or when it interprets a law that has been interpreted differently by lower level tribunals (called “contradiction of thesis”). Amparo Law (Ley de Amparo), http://info4.juridicas.unam.mx/ijure/fed/19/default.htm?s= (accessed February 2, 2009), art. 192.
For example, in 1961 the Supreme Court ruled that civilian authorities may investigate a homicide in a case in which it had not been proven that the member of the military accused of the crime was “in service” when the homicide occurred. Supreme Court, Sixth Period, Thesis No. 258,081, Semanario Judicial de la Federación, vol. LIV, 1961, p. 175. The Supreme Court adopted other similar decisions. Supreme Court, Fifth Period, Thesis No. 384175, Semanario Judicial de la Federación, vol. CXXVI, 1955, p. 237; Supreme Court, Fifth Period, Thesis No. 278085, Semanario Judicial de la Federación, vol. CXXVI, 1955, p. 480; Supreme Court, Fifth Period, Thesis No. 294451, Semanario Judicial de la Federación, vol. CXXVI, 1955, p. 733.
Also in 1961, the Supreme Court held that military courts were competent to investigate military abuses against civilians, as they had been committed while the accused was on duty. Supreme Court, Sixth Period, Thesis No. 804058, Semanario Judicial de la Federación, vol. XLI, 1961, p. 210.
[24]Mexican Supreme Court, Jurisprudence, “Contradiction of Thesis” (Contradicción de Tesis) 105/2005-PS, September 28, 2005. The original language in Spanish is: “realización de las funciones propias e inherentes al cargo que desempeña.”
[25]Jurists have offered several arguments in support of the view that, in light of an analysis of Article 13 of the Mexican Constitution as a whole, civilian courts have jurisdiction to address these cases.
The first is that the mere fact that the victim is a civilian is enough to prohibit the use of military courts to investigate these cases. Human Rights Watch interview with Miguel Carbonell Sánchez, constitutional law expert and researcher and coordinator of the Constitutional Law section, Institute of Juridical Investigations at the National Autonomous University of Mexico, Mexico City, November 19, 2008. Human Rights Watch email exchange with Diego Valades, constitutional law expert and permanent researcher at the Institute of Juridical Investigations at the National Autonomous University of Mexico, January 30, 2009. Human Rights Watch interview with Manuel Oropeza, magistrate, Federal Electoral Tribunal, Mexico City, November 18, 2008.
A second argument is that military courts may not exercise jurisdiction over civilian victims, since the Constitution was modified to recognize victims’ rights in its Article 20(C), and those rights cannot be adequately fulfilled in the military system. These rights include the right to be informed of the progress of the proceedings, to collaborate with prosecutors investigating the case (coadyuvancia), to receive urgent medical and psychological attention, and the possibility to appeal certain decisions adopted by prosecutors. Human Rights Watch email communication with Miguel Sarre, professor, Instituto Tecnológico Autónomo de México (ITAM), Mexico City, November 18 and 26, 2007.
A third argument is that “the nature of the offense” determines which justice system has jurisdiction to investigate a case, and whenever a case involves a common crime against a civilian (and not strictly a breach of military discipline), civilian courts have jurisdiction to address it. Human Rights Watch interview with Sergio García Ramírez, judge of the Inter-American Court of Human Rights and permanent researcher at the Institute of Juridical Investigations at the National Autonomous University of Mexico, Mexico City, January 12, 2009.
Finally, some practitioners argue that, since the Code of Military Justice did not go through the appropriate process for approval of legislation, the entire code is unconstitutional. (The Code of Military Justice was issued by General Abelardo L. Rodríguez, acting president in 1933, using extraordinary powers asserted by the executive at that time, and it was never approved by the Mexican Congress.) According to this view, since the code was not adopted by Congress, it should not be deemed a legally binding interpretation of Article 13 of the Constitution. Human Rights Watch interview with Fabián Aguinaco Bravo, constitutional law expert, Mexico City, January 13, 2009. Human Rights Watch interview with Francisco Garza Martínez, lawyer who defends members of the military before military courts, Mexico City, November 18, 2008.
See also Sergio García Ramírez, “Characteristics of the Mexican Criminal Law Trials” (Características del Enjuiciamiento Penal Militar Mexicano),Estudios penales, 1977, p. 7; Miguel Carbonell Sánchez, Fundamental Rights in Mexico (Los Derechos Fundamentales en México) (Mexico: PORRUA/UNAM, 2004); “Military Jurisdiction in Mexico: The Injustice of the Armed Forces” (El Fuero Militar en México: La injusticia en las Fuerzas Armadas), Manuel Oropeza, LASA, Puerto Rico, 2006, transcript on file with Human Rights Watch. Carlos Kastilla, “Military Jurisdiction in Mexico: A Jurisdiction with no Limits in light of Human Rights” (El Fuero de Guerra Mexicano: Una Jurisdicción Extralimitada a la Luz De Los Derechos Humanos),Revista del Centro Nacional de Derechos Humanos, No. 9, 2009 (publication pending).
[26]Mexican Constitution, art. 13.
[27] Supreme Court, Seventh Period, Thesis No. 235143, Semanario Judicial de la Federación, vol. 91-96, Second Part, 1976, p. 33. Supreme Court, Fifth Period, Thesis No. 278082 Semanario Judicial de la Federación, vol. CXXVI, 1955, p. 468. Supreme Court, Sixth Period, Thesis No. 258679, Semanario Judicial de la Federación, vol. I, 1957, p. 75.
[28]Between 1917 and 1988, the Supreme Court ruled in some cases that military authorities have jurisdiction to investigate the cases in which the victim was a civilian. For example, Supreme Court, Fifth Period, Thesis No. 278057, Semanario Judicial de la Federación, vol. CXXVII, 1956, p. 987. Supreme Court, Seventh Period, Thesis No. 235610, Semanario Judicial de la Federación, 1975, p. 34.
[29] Human Rights Watch interview with Jesús Torres Charles, Coahuila state attorney general, Saltillo, November 4, 2008.
The Chihuahua state attorney general shares this view and has, as a result, sent several cases to the PGR. Human Rights Watch interview with Patricia González Rodríguez,Chihuahua state attorney general, Washington, DC, November 8, 2008. Some examples of recent complaints regarding military abuses against civilians, including beatings and illegal entries into homes, that the state attorney general’s office sent to federal prosecutors are: Chihuahua State Attorney General’s Office, Document No. 0361/2008, April 10, 2008; Chihuahua State Attorney General’s Office, Document No. 0418/2008, April 28, 2008; Chihuahua State Attorney General’s Office, Document No. 0592/2008, June 13, 2008; Chihuahua State Attorney General’s Office, Document No. 0645/2008, June 27, 2008; Chihuahua State Attorney General’s Office, Document number 0693/2008, July 11, 2008; Chihuahua State Attorney General’s Office, Document No. 761/2008, August 13, 2008; Chihuahua State Attorney General’s Office, Document No. 0708/2008, July 15, 2008; and Chihuahua State Attorney General’s Office, Document No. 781/08, August 25, 2008.
Human Rights Watch has been unable to document whether these specific cases were in fact being investigated by civilian or military authorities. However, senior officials from the PGR told Human Rights Watch that they “automatically” send cases involving soldiers on active duty to the PGJM. Human Rights Watch interview with Yessica de Lamadrid Téllez, general director of international cooperation of the Procuraduría General de la República (PGR), and other PGR representatives, Mexico City, January 13, 2009.
[30]For example, military authorities investigated for years the case of Miguel Orlando Muñoz Guzmán, a military official who has been missing since 1993 and was last seen inside military installations. Yet in 2007, after a series of meetings between the Comisión Mexicana de Defensa y Promoción de los Derechos Humanos (the NGO that took the case to the IACHR) and government officials, the government of Mexico stated that the case was being investigated by state prosecutors. Letter from Santiago Canton, IACHR executive secretary, to Comisión Mexicana de Defensa y Promoción de los Derechos Humanos and CEJIL, March 23, 2007. Another example is the case of the González Pérez sisters, analyzed in chapter III of this report.
[31] See chapter VI on Mexico’s obligations under international law.
[32] Mexican Supreme Court, Full Chamber, Ninth Period, Thesis No. LXXVII/99, Semanario Judicial de la Federación, vol. X, 1999, p. 46. Mexican Supreme Court, Full Chamber, Ninth Period, Thesis No. P. IX/2007, Semanario Judicial de la Federación, vol. XXV, 2007, p. 6.
[33]A federal court has ruled that “when international treaties develop or broaden fundamental rights contained in the Constitution, they should prevail over federal laws which do not do so, especially when other federal laws complement them.” Federal Circuit Courts, Ninth Period, Thesis I.4o.A.440 A, Semanario Judicial de la Federación, vol. XX, 2004, p. 1896.
[34] The secretary of defense is in charge of “organizing, administering, and preparing the Army and the Air Force.” Organic Law of the Federal Public Administration (Ley Orgánica de la Administración Pública Federal),http://www.ordenjuridico.gob.mx/Federal/PE/PR/Leyes/26121986(1).pdf (accessed February 2, 2009), art. 29 (I).
[35] According to the Law on Discipline of the Mexican Army and Air Force, discipline is “the norm by which military officers must abide; it is based on obedience and a high concept of honor, justice, and morality and has as a purpose the truthful and accurate fulfillment of duties established in military laws and rules.” Law on Discipline of the Mexican Army and Air Force (Ley de Disciplina del Ejército y Fuerza Aérea Mexicanas), http://www.ordenjuridico.gob.mx/Federal/Combo/L-27.pdf (accessed February 2, 2009), art. 3.
[36]The Law on Discipline of the Mexican Army and Air Force states that “the superior officer will be responsible for maintaining order in the troops under his charge, and for the fulfillment of the troops’ obligations, without having the possibility to excuse himself if his officers carry out omissions or errors.” Law on Discipline of the Mexican Army and Air Force, art. 7.
[37]Organic Law of the Federal Public Administration, art. 29(X).
[38]The secretary of defense appoints the military attorney general and all military prosecutors, who must be lawyers. Ibid., arts. 39, 41, 42, 43, 44.
The secretary of defense appoints the head of the Public Defenders’ Office and all public defenders, who must be lawyers and have a lower rank than the sitting judge and, if applicable, than members of the court-martial. Ibid., arts. 55, 97.
The secretary of defense appoints all military judges and members of the “ordinary courts-martial.” Ibid., arts. 27, 13.
The secretary of defense appoints all members of the STM, with approval of the president of Mexico. Ibid., art. 7. The STM is composed of a president, who does not have to be a lawyer, and four magistrates, who must be lawyers. Ibid., arts. 3, 4. Human Rights Watch interview with senior SEDENA officials, including General Jaime Antonio López Portillo Robles Gil, general director of human rights, and General José Luis Chávez García, military attorney general, Mexico City, January 12, 2009.
[39]Code of Military Justice, art. 36: “The military prosecutor’s office is the only one able to charge an individual with a crime and may not end an investigation unless it considers it necessary or by signed order of the Secretary of War and Marine [now Secretary of Defense] or by the person who substitutes him; order which may be given when the social interest requires it…”
Organic Law of the Federal Public Administration, art. 29 (XI): “The Secretary of Defense is in charge of the following matters: … (XI) intervene in the pardons related to military crimes.”
[40]Human Rights Watch interview with senior SEDENA officials, including General Jaime Antonio López Portillo Robles Gil, general director of human rights, and General José Luis Chávez García, military attorney general, Mexico City, January 12, 2009.
[41] Ibid. Code of Military Justice, arts. 87, 88, 89.
Although military personnel working within the military justice system are not transferred to other positions within the Armed Forces, there is no guarantee they would continue performing the same functions (i.e., as prosecutors, defense attorneys, or judges). A judge could be removed to become a prosecutor, a defender, or a member of a court-martial, according to the needs of SEDENA. Human Rights Watch interview with Alejandro Carlos Espinoza, professor of military justice, Law School, National Autonomous University of Mexico (UNAM), Mexico City, February 4, 2009.
[42]This role is fulfilled by the president of the Supreme Military Tribunal. Human Rights Watch interview with senior SEDENA officials, including General Jaime Antonio López Portillo Robles Gil, general director of human rights, and General José Luis Chávez García, military attorney general, Mexico City, January 12, 2009. Code of Military Justice, arts. 68 (VI), 67 (V).
According to the Code of Military Justice, “members of the military judicial service may sanction and arrest… their subordinates for the faults they commit when carrying out their functions. The Military Supreme Tribunal, the Attorney General, and the head of the Military Defenders Office may propose, also, to the [Secretary of Defense]… the change of location of a judge, prosecutor and defender as part of the punishment. If this measure is not accepted by the superiors, a change of corrective measure may be taken.” Code of Military Justice, art. 92.
[43] A private lawyer who defends military officers, for example, explained to Human Rights Watch that there is “nothing” that would make him prefer civilian courts over military ones. The military justice system’s benefits for the accused include, according to the lawyer, much better prison conditions (“military prisons are a luxury”), lower sentences, higher chances of obtaining conditional liberty after paying bail, and the possibility of continuing to receive a salary as a member of the armed forces (even if a slightly lower one). Human Rights Watch interview with Francisco Garza Martínez, private lawyer, Mexico City, November 18, 2008.
[44]In cases in which civilian victims have challenged the use of military jurisdiction to investigate these cases, federal courts have thrown out their cases, arguing they have no standing. See chapter III (cases of Rosendo Radilla Pacheco, Inés Fernández Ortega, and Valentina Rosendo Cantú) and chapter IV (case of the killing of four civilians and abuse and arbitrary detention of four others in Santiago de Caballeros in Sinaloa state).
[45] Human Rights Watch interview with senior SEDENA officials, including General Jaime Antonio López Portillo Robles Gil, general director of human rights, and General José Luis Chávez García, military attorney general, Mexico City, January 12, 2009.
[46] Organic Law of the Federal Judicial Branch (Ley Orgánica del Poder Judicial de la Federación), http://www.ordenjuridico.gob.mx/Federal/PE/PR/Leyes/26121986(1).pdf (accessed February 2, 2009), art. 21.
[47] According to article 10 of the Amparo Law, victims could, in theory, file an injunction against a conviction (but not an acquittal) only in relation to reparations. Supreme Court binding case law supports this view. Mexican Supreme Court, Jurisprudence, Contradicción de Tesis 152/2005-PS, November 22, 2005.
[48] Mexican Constitution, arts. 103, 107.
[49] Human Rights Watch interview with senior SEDENA officials, including General Jaime Antonio López Portillo Robles Gil, general director of human rights, and General José Luis Chávez García, military attorney general, Mexico City, January 12, 2009.
[50]Ibid. The law permits victims’ participation in the process. Code of Military Justice, arts. 83 (XIV), 439.
[51]The director of SEDENA’s human rights office says that they have invited civilian victims to cooperate with military prosecutors in their investigations and have even offered them transportation from their communities to military installations, but that civilians have systematically refused to attend. Human Rights Watch interview with senior SEDENA officials, including General Jaime Antonio López Portillo Robles Gil, general director of human rights, and General José Luis Chávez García, military attorney general, Mexico City, January 12, 2009.
[52]Representatives from the General Directorate of Military Justice (Dirección General de Justicia Militar), the PGJM, and the Office to Assist Citizens did not have the requested information. Human Rights Watch telephone interview with member of the military, General Directorate of Military Justice, Mexico City, February 16, 2009. Human Rights Watch telephone interview with member of the military, PGJM, Mexico City, February 16, 2009. Human Rights Watch telephone interview with member of the military, Office to Assist Citizens, Mexico City, February 16, 2009.
Representatives from the STM and the First Military Tribunal stated that the hearings are public but that a person who wanted to observe one should submit a specific request to obtain an authorization from SEDENA. Human Rights Watch telephone interview with member of the military, STM, Mexico City, February 16, 2009. Human Rights Watch telephone interview with member of the military, First Military Tribunal, Mexico City, February 16, 2009.
A representative from the General Directorate for Human Rights (Dirección General de Derechos Humanos) stated he was not authorized to provide that information, and another representative held that he did not have the requested information. Human Rights Watch telephone interview with members of the military, General Directorate for Human Rights, Mexico City, February 16, 2009.
Through the telephone interviews with SEDENA representatives, Human Rights Watch was only able to confirm that hearings in Mexico City are held in the Military Camp No. 1-A. A Mexican lawyer went to the Military Camp No 1-A on February 18, 2009, to request information on public hearings and observe a hearing held that day. The lawyer was able to enter the military premises after showing her professional identification, and requested information on hearings occurring that day in six military courts. Only one military court had a board with information on hearings that would be held that week.
The only judge who had a hearing that day asked the lawyer where she worked, where she had studied, if she was a journalist, why she was interested in being present in a hearing, and if she had family members in the military. The judge stated that to observe an ordinary court-martial, it was normally necessary to obtain previous authorization from SEDENA, but authorized the lawyer to be present during a hearing before the judge that was going to be held that day. The hearing was cancelled at the last minute.
[53]See chapter IV, which analyzes recent military investigations into human rights abuses documented by the CNDH.
[54]SEDENA provided Human Rights Watch with partial or inaccurate information on the cases of military abuses documented by CNDH in 2007 and 2008. For example, in two cases, SEDENA responded to a specific request asking for the number of criminal cases that it had opened to comply with the CNDH’s reports, stating that no new investigations had been opened. However, the CNDH, in its 2008 annual report, said that SEDENA had stated that it had opened criminal investigations in both cases. (SEDENA opened investigation No. SC/206/2007/III with respect to CNDH Recommendation 38/2008, and investigation No. 9ZM/020/2008 with respect to CNDH Recommendation No. 40/2007.) SEDENA, Infomex file 0000700155208, January 7, 2009. SEDENA, Infomex file 0000700155408, January 15, 2009. CNDH, “Annual Report of Activities from January 1 to December 31, 2008, (Informe Anual de Actividades de 1 de enero al 31 de diciembre de 2008), http://www.cndh.org.mx/lacndh/informes/anuales/InformeActividades_2008.pdf (accessed February 2, 2009), annex 4.
[55] Human Rights Watch submitted 25 information requests to the CNDH regarding the reports on army abuses it issued in 2007 and 2008. In 13 requests, Human Rights Watch specifically asked for updated information regarding the commission’s follow up after documenting egregious human rights violations committed by the military. The CNDH refused to provide information in all of these requests, despite the fact that SEDENA had “accepted” all the reports and their content had been made public on the CNDH’s website and in its annual reports. CNDH, File 2008/429-T, January 9, 2009. CNDH, File 2008/431-T, January 9, 2009; CNDH, File 2008/427-T, January 9, 2009; CNDH, File 2008/425-T, January 9, 2009; CNDH, File 2008/423-T, January 9, 2009; CNDH, File 2008/421-T, January 9, 2009; CNDH, File 2008/419-T, January 9, 2009; CNDH, File 2008/417-T, January 9, 2009; CNDH, File 2008/415-T, January 9, 2009; CNDH, File 2008/413-T, January 9, 2009; CNDH, File 2008/408-T, January 9, 2009; CNDH, File 2008/410-T, January 9, 2009; CNDH, File 2008/412-T, January 9, 2009.
Human Rights Watch documented in 2008 the CNDH’s failure to adequately follow up after it issues reports documenting abuses, and its failure to promote reforms, including of the military justice system. For more information, see Human Rights Watch, “Mexico’s National Human Rights Commission: A Critical Assessment,” Vol. 20, No. 1 (b), sections IV and V.
[56]According to the law, military prosecutors must press charges within 48 hours (Code of Military Justice, art. 80) and ask a judge to issue an arrest warrant within 72 hours (Code of Military Justice, art. 515). The accused is supposed to declare (give his or her preliminary statement) before the judge within 24 hours (Code of Military Justice, art. 491); and the judge must issue a ruling within four months to a year (Code of Military Justice, art. 616).
But, according to SEDENA officials, if the accused wishes to appeal a decision or offer more evidence, these time limits may be extended for an indefinite amount of time. Human Rights Watch interview with senior SEDENA officials, including General Jaime Antonio López Portillo Robles Gil, general director of human rights, and General José Luis Chávez García, military attorney general, Mexico City, January 12, 2009.
[57] Human Rights Watch interview with senior SEDENA officials, including General Jaime Antonio López Portillo Robles Gil, general director of human rights, and General José Luis Chávez García, military attorney general, Mexico City, January 12, 2009.