UNCONSTITUTIONALITY OF ARTICLE 57, SECTION II, PARAGRAPH A) OF THE CODE OF MILITARY JUSTICE AND LEGITIMATION OF THE INJURED PARTY AND HIS FAMILY TO PRESENT AN APPEAL FOR THE PROTECTION OF CONSTITUTIONAL RIGHTS. Amparo Review No. 133/2012. At http:// www2.scjn.gob.mx/AsuntosRelevantes/pagina/SeguimientoAsuntosRelevantesPub.aspx?ID = 136182&SeguimientoID=478.
Supreme Court of Mexico, August 21, 2012.
American convention on human rights--state responsibility--compliance with international decisions--military jurisdiction
On August 21, 2012, the Mexican Supreme Court declared unconstitutional Article 57 of the Mexican Code of Military Justice (CMJ) and in doing so complied with several judgments of the Inter-American Court of Human Rights (I/A Court). (1) From the point of view of Mexican law, the Supreme Court's decision means that civilians who have suffered from the unconstitutional expansion of military jurisdiction in Mexico are, for the first time, protected by the federal judiciary. More significant from the perspective of international law, the decision to bring Mexican law into compliance with the judgments of the I/A Court reflects growing acceptance of that Court's judgments, and international human rights law, by the states parties to the American Convention on Human Rights (American Convention), as well as the general decline of military jurisdiction and impunity in the region. (2)
The background to this significant development involves the interplay among several provisions of Mexican law, several rulings of Mexican courts, and several cases against Mexico before the I/A Court. The Mexican legal system included two contradictory provisions: Article 13 of the 1917 Constitution, which prohibits military courts from trying members of the military for crimes that involve civilians, (3) and Article 57 of the 1933 CMJ, which expanded military jurisdiction to cover any act committed by a member of the military. (4) 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. Unfortunately, Mexico was hardly unique in the hemisphere in following this approach, even though the inter-American system for the protection of human rights consistently maintained that prosecuting ordinary crimes as military crimes simply because they had been committed by members of the military contravened the human right to be tried by an independent and impartial tribunal. (5)
Radilla Pacheco v. Mexico was the first case concerning Mexico's expansion of military jurisdiction to come before the I/A Court. On August 25, 1974, Rosendo Radilla Pacheco was arrested and forcibly disappeared by members of the Mexican army in the militarized state of Guerrero. Given the lack of response to the formal complaints filed by Radilla Pacheco's family denouncing his disappearance before state and federal authorities, the Mexican Commission for the Defense and Promotion of Human Rights and the Association of Relatives of Disappeared Detainees and Victims of Violations of Human Rights in Mexico presented a complaint against Mexico before the Inter-American Commission on Human Rights (I/A Commission) alleging that Mexico had failed to conduct an effective investigation to establish Radilla Pacheco's whereabouts or to punish those responsible. (6) In 2005, the Federal District Court of Guerrero ordered the arrest of Lt. Col. Francisco Quiroz Hermosillo, who was in charge of the militarized area when Radilla Pacheco was arrested. (7) That court, however, ceded jurisdiction to a military court, characterizing the offense as one of military discipline, in accordance with Article 57 of the CMJ.8 Radilla Pacheco's family challenged the transfer of jurisdiction, to no avail. on November 29, 2006, the military court dismissed the case owing to the extinction of the criminal action following the death of the defendant on November 19, 2006. (9) 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. (10)
The Mexican government failed to comply with the I/A Commission's recommendations. Accordingly, on March 15, 2008, the Commission submitted the case to the I/A Court, pursuant to Article 61(1) of the American Convention. On November 23, 2009, the I/A Court 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 and 25 of the Convention. (11) The 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 an effective recourse for contesting the exercise of military jurisdiction. (12) To prevent repetition of this violation, the I/A Court ordered Mexico to "adopt...