Mexico’s Supreme Court: Members of the Military Can Be Tried in Civilian Courts for Crimes that Violate Human Rights of Civilians (Not in Military Court)

12 07 2011

SCJN: OK for Civilian Ct. to Try Members of the Military for Crimes vs. Civilians

The Suprema Corte de Justicia de la Nación (SCJN), Mexico’s highest court, decided today that cases involving violations of human rights of civilians by members of the military can be tried in civilian courts—and not in military courts, as has been the practice until now. Well done, SCJN!

The SCJN specifically stated that the change in judiciary posture was made in execution and in deference to the Inter–American Court of Human Rights (IACHR)’ 2009 recommendation on the case of Mr. Rosendo Radilla. (Mr. Radilla was a local activist in Guerrero on the 1970s. He was arrested at a military checkpoint in 1974 and was never seen again.)

Article 57of the Code of Military Justice indicates on its previous to last paragraph that crimes involving both civilians and members of the military–like the Radilla case, and like the killing of civilians in military checkpoints in 2011, military members should be tried in military court.

On November 29, 2009, the Inter-American Court ordered Mexico to implement Constitutional and legislative reforms in matters of military jurisdiction, including the amendment of the above–mentioned article 57; President Felipe Calderon introduced a bill on the Mexican Senate in October of 2010, to comply with international treaties and the recommendation of the Inter-American Court, but Congress has failed to pass the amendments. The SCJN stood up to the plate to conform with the international tribunal’s decision.

Ministro Jose Ramón Cossío Díaz defined that the heart of the Inter–American Court’s sentence asks that cases of violations of human rights of civilians by members of the military should be tried in civilian–and not military–courts.

The SCJN’s decision is correct at least by 3 reasons:

  1. It reiterates Mexico’s respect for int’l law, int’l human rights, and the weight of sentences by int’l tribunals. This is congruent and consistent with Mexico´s own position with other countries in similar issues, like its stance with the United States’s violation of the Vienna Convention on Consular Relations and of the International Court of Justice judgment regarding 52 Mexican nationals on death row in the US, as exemplified last week before and after the execution of Humberto Leal in Huntsville, TX (violations by geopolitical divisions of a country are imputed to the country itself) (The Washington Post published an editorial urging the US Congress to act on the issue).
  2. It gives transparency to criminal proceedings involving members of the military and civilian victims by taking the cases out of the barracks, and into the judiciary branch.
  3. The resolution hopefully will narrow discretion of the military in its day-to-day operations in civilian life, in the context of the war against organized crime declared by President Calderon.

Arrest Warrant v. Mexican Lawmaker Julio Cesar Godoy-Toscano Can Now Be Executed.

29 12 2010

Mexico’s Lower Chamber of Congress,  the Cámara de Diputados, voted overwhelmingly (384-2-21) last Dec. 14 to strip Mexican Lawmaker Julio Cesar Godoy Toscano from the Constitutional Protection from prosecution. Godoy-Toscano has an arrest warrant for his alleged commission of drug offenses, money laundering and organized crime (see the note by CNN) to. The vote allows the Procuraduría General de la República (the Attorney General’s Office) to execute the warrant issued by the federal court.

The case is not exempt from controversy and alleged political implications, but this step will allow the courts and not the press settle it down… provided Godoy-Toscano is found (he previously succeeded in evading arrest for 15 months, before swearing-in as lawmaker and enjoying the Constitutional protection that was recently removed from him).

President Calderon Introduces Bill to Allow Military Members to be Tried in Civilian Courts for Certain Serious Crimes

19 10 2010

Mexican President Felipe Calderon in Military Fatigues, January of 2007.

Mexican President Felipe Calderon introduced this Monday a bill in the Senado de la República (the Senate) to allow civilian courts to try members of the military for three specific crimes related to human rights violations: rape, torture and forced disappearance of persons. Per Mexican constitutional right, the President of the Republic can introduce bills to congress [congress members and state legislatures can do so too].

The tentative change on the law is especially significant due to the increased role of the Mexican military in every–day operations on the so-called Mexican Drug War initiated by President Calderon in 2006. As of February of 2010, the Military remain the third most trusted institution in Mexico, just after the Church (#1) and Universities (#2), according to Consulta Mitofsky [the President is #8; political parties land a poor #13].

The proposed amendment is done, according to Mr. Calderon, to comply with international treaties and the recommendation of the Inter–American Court of Human Rights on the case of Mr. Rosendo Radilla. Mr. Radilla, a local activist of Atoyac, Guerrero, was arrested at a military checkpoint in 1974 because he “composed corridos [folk songs]” probably considered subversive; he was never seen again. At the time, the Mexican government and military was engaged in what was known as the Dirty War against dissidents and guerrilla members. On November 29, 2009, the Inter-American Court found Mexico liable and ordered reparations — including “Constitutional and legislative reforms in matters of military jurisdiction [;]” payments for $12,000 USD for loss of income since 1974; $1,300 USD for consequential damages; $30,000 USD for non–pecuniary damages, and; $25,000 USD for costs and expenses.

[It is worth noting that the Inter-American Court of Human Rights takes cases per application by the Inter-American Commission of Human Rights. The Court sits in Washington, DC; the Commission sits in San Jose, Costa Rica.]

The L.A. Times has a  different reading of the President’s initiative: they see it as a concession made to a U.S. Congress “key requirement” of the approved “$1.4-billion security aid package for Mexico, known as the Merida Initiative, in 2008.”

I would think that the Inter–American Court of Human Rights opinion was the deciding factor on President Calderon’s initiative, and the compliance with the key requirement of the Merida Initiative is a helpful byproduct that broadened the number of crimes that will allow for civilian trials of the military. But in reality the bill satisfies both interests.

The amendment perhaps will pass without much opposition in Congress.

Duty of confidentiality and attorney–client privilege under attack in Mexico? We’ll see.

27 08 2010

Is the duty of confidentiality and attorney–client privilege under attack in Mexico by a new a new anti-money laundering bill soon to be introduced by Mexican President Felipe Calderon, as announced yesterday?

The initiative has been touted as a strong measure against organized crime, amidst the so-called Guerra al Narcotráfico (War on Drug Trafficking) started in 2006 by the federal government of Mexico. And the President probably is right in his core assumption that weakening the financial strength of the criminal organizations is fundamental. Per Constitutional mandate, the President, members of Congress and the state legislatures can introduce bills to reform federal laws with the Congreso of the Unión, Mexico’s bicameral federal legislative body.

The most visible component of the presidential initiative prohibits cash purchases of all real estate, and places a limit of $100,000 Mexican Pesos (approx. $7,700 US dollars) on such purchases of cars, planes and luxury items –traditionally associated with drug traffickers’ stereotype such as jewelry. Mexico already imposes a 2% tax on cash deposits into bank accounts after certain monthly limit.

Certain goods sellers and service providers would have a legal obligation to report suspicious activities – or “sensitive” activities (actividades sensibles), as called in the press conference – to the tax authority. Obvious addressees of the obligation to report are owners of car dealerships, financial agencies –which already had such duty, bulletproofing shops and jewelers. But apparently the obligation would also include CPAs and attorneys. Yes, lawyers. How about our duty of confidentiality and attorney-client privilege?

To be fair, the bill is still to be introduced to Congress – hopefully it would be made available to the public then – and still then, it would be only a proposal subject to Congress’ legislative powers. Once and if it is signed into law by Pres. Calderon after Congress approval, we will be able to see and analyze the reach of the measure towards the legal community.

And to put things in context, the so called War on Drugs presents unprecedented challenges to the Mexican government and State. Calderon himself is a good lawyer that

President Felipe Calderon announcing an anti-money laundering bill

graduated with honors from what is generally considered the best law school in Mexico. More to come as the topic progresses….