Mexican Supreme Court restricts preventative detention

By Chris Covert
Rantburg.com

The Mexican Suprema Cort de Justicia del Nacion (SCJN) or Supreme Court, said Monday that Mexican states may not use preventative detention, saying that the practice was available only to the federal government, according to Mexican news accounts.

The practice, known as arraigo, or rooting was a constitutional reform passed in 2008 in order to allow federal prosecutors a tool in dealing with organized crime.  Arraigo allows the government to detain individuals incommunicado suspected in serious crimes drug crimes for up to 80 days in 40 day increments without trial or bail.  Arraigo can only be granted by a federal judge, and can only be extended once  by a federal judge.  In past drug cases, some defendants have been detained for 20 days.

According to a La Jornada wire dispatch which appeared in the online edition of El Diario de Chihuahua news daily, the panel voted eight to two on a case brought by  Comision Nacional de los Derechos Humanos (CNDH) or Human Rights Commision, concerning Article 291 in the state constitution of Aguascalientes, which permitted local and state judges to grant requests for preventative detention for serious crimes.

The SCJN members said that arraigo was intended to be applied only in serious crimes linked to drug cases.  While the ruling negated the Aguascalientes law, the court said that preventative detention cases would have to be evaluated on a case by case basis.  That part of the ruling means that criminal defendants are not to be released en masse until a judge has had a say in the release, but can petition the court for redress.  A number of state entities have arraigo on their books including Hidalgo state.

In Mexico in the legal community, arraigo is generally considered a violation of human rights inasmuch as a judge is employed to oversee the detention. The ruling leaves unaddressed federal use of arraigo.

According to the news report, arraigo violates international human rights conventions, and it also is in direct contradiction to the SCJN ruling in 2011 that international human rights treaties have the same force as as Mexican laws in the area of human rights.

According to a Notimex wire dispatch which appeared in Milenio news daily, SCJN  intends to deal with the 2011 ruling in a later session.

According to a news article in Animal Politico,  8,595 individuals have been placed in preventative detention, but only 3.2 percent have actually been convicted of a crime.  In a separate news report, Mexican federal judges have denied arraigo only 4.7 percent of the time. It is unclear in the news report if those statistics are nationwide at the federal level or at both the federal and state levels.  In states such as Hidalgo, crimes listed under which states have imposed arraigo include murder, robbery, extortion, abortion and rebellion.

According to  Jose Antonio Guevara Bermudez, director of the Comision Mexicana de Defensa y Promocion de los Derechos Humanos (CMDPDH) or Commision for Defense and Promotion of Humans Rights, preventative detention increases the chance that a detainee will suffer physical abuse at the hands of the state.  In the Animal Politico article a 2011 case is cited of  Miriam Lopez, who was arrested in Ensenada, Baja California.

Senora Lopez claimed she was subjected to torture and physical and sexual abuse during the three weeks she remained in preventative detention. 

Chris Covert writes Mexican Drug War and national political news for Rantburg.com and BorderlandBeat.com  He can be reached at grurkka@gmail.com

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Mexican high court says military drug cases can be tried by military courts

By Chris Covert
Rantburg.com

The Mexican Supreme Corte de Justicia de la Nacion (SCJN) or Supreme Court ruled Tuesday that soldiers under going prosecution for drug crimes should by tried in military courts, according to Mexican news accounts.

According to a news item posted on the website of Milenio news daily Wednesday afternoon, in the narrow six to five vote, justices said that  infantry lieutenant Martin Rueda Ovando need not appear before a civilian court for his crimes, since no civilians were involved in the alleged crimes by the soldier.

Lieutenant Rueda Ovando is said to have been under orders by an unidentified superior officer to destroy marijuana plantation near a military checkpoint in Guachochi municipality far western Chihuahua state April, 2010.  The soldier had been charged with dereliction of duty and crimes against health.

The ruling by the SCJN is the first ruling which constricts the roles of civilian courts, since last year in Mexico's ongoing drug war, where Mexico's popular military is involved.  However, as matters stand now, since the standard of civilian involvement was imposed last year in cases with civilian victims of the military, the ruling seems to solidify and further clarify the July 2011 ruling.

That July 2011 ruling by the SCJN said that criminal cases against military where civilian victims has involved must be set for investigation and trial in civilian courts.  The effect of that ruling has been to consider all cases where a civilian had been harmed at the hands of the military to be human rights cases.

The case of infantry Lieutenant Rueda Ovando was a clear departure from human rights cases since no civilians were victimized by actions of the military.

The ruling was so narrow because, according to the article the defendant simply failed to fully carry out the order, and did not move the product for sale or committed any other act common to crimes against health.

According to an article which appeared in Informador news daily Wednesday, for example, on the same day, the SCJN ruled nine to two that military police Carlos Fidel Flores Abrego and five other soldiers should be tried before a civilian judge in a 2011 murder case.

In 2011, Dr. Jorge Otilio Cantu was shot to death by elements of a Mexican Army road patrol in Nuevo Leon state.  In that case, Flores Abrego had been accused of planting a weapon at the scene following the shooting, to make it appear  Dr. Otilio Cantu had fired on the soldiers, prompting army return fire.

SCJN Associate Justice Margarita Luna Ramos

SCJN Associate Justice Salvador Aguirre Anguiano

Justices  Margarita Luna Ramos and Salvador Aguirre Anguiano voted against moving the case to civilian court since the case had already already been decided in military courts.

Mexico's court system has been slow in implementing the new standard.  A Jucio de amparo filed two weeks ago which appeared before the SCJN was denied by the court because two forced disappearance victims, Jose Luis Guzman Zuniga, 29, and Carlos Guzman Zuniga 28, were involved.  In that case, 22 soldiers allegedly involved in the disappearance were ordered to trial in a Mexican federal court.

Jucio de amparo lawsuits are common procedural appear meant to preserve the rights of defendants as well as victims in criminal cases.

Chris Covert writes Mexican Drug War and national political news for Rantburg.com

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Mexican supreme court orders 22 soldiers to trial

By Chris Covert
Rantburg.com

The Mexican  Suprema Corte de Justicia de la Nacion (SCJN) or Supreme Court ordered 22 soldiers to trial in civilian court over the detention and disappearance of two men in Ciudad Juarez in 2008, according to Mexican news accounts.

A news report posted on the website of Animal Politico political news website Monday evening said that an amparo appeal filed by the 22 defendants was overturned, and the court ordered the military judge in the proceedings to stop the proceedings and turn the case over to a federal judge.

Up until a year ago, military prosecutors nationwide conducted the investigation and prosecution of all Mexican military involved in crimes against civilians, even if those crimes were committed as a part of a military operation.  Amparo suits intended to move those cases to civilian courts, which are procedural appeals instituted to assure the rights of defendants, were usually denied by civilian courts in favor of military prosecutors, until the SCJN declared last year that all human rights cases stemming from crimes committed by the military must be prosecuted in civilian courts.

SCJN Justice Juan Silva Meza

The case involves the detention in November 2008 of two brothers who were arrested by a force of between 40 and 50 soldiers in Ciudad Juarez, and then disappeared.

According to a column by Raymundo Riva Palacio posted in 2009 on the website of Zocalo.com.mx, witnesses had seen soldiers remove the two men from their home and were taken away in military vehicles.

A year after the detention, the Mexican Army and security officials in Ciudad Juarez, Chihuahua state and even the federal government denied knowing the whereabouts of the two men.

The raid was a joint operation carried out by Mexican Army and Policia Federal, which provided perimeter security for the raid, took the detainees to the headquarters of the Mexican 22nd Motorized Cavalry regiment.  One of the detainees, Jose Luis Guzman Zuniga, 29, was arrested for extortion while the other, Carlos Guzmán Zúniga 28, was arrested for possession of cocaine.

The Mexican Procuraduria General de Republica (PGR) or Mexican attorney general denied having been involved in the detention subsequent to the arrests.

According to the Animal Politico story, the Secretaria de Defensa Nacional (SEDENA), the controlling agency for the Mexican Army, had investigated the involvement of four of the soldiers involved in the arrests, but had to date not made any case or arrests against them.

According to current law even though a Mexican federal judge can continue the prosecution, that judge still has the power to dismiss the case outright.

The disappearance case also directly impacts the Mexican Constitution, Article 19, which permits federal courts to assert jurisdiction in cases even though a case may have been a local matter, regardless whether federal security forces were involved in the original arrests. 

The SCJN ruling last year which requires human right cases to only be tried in civilian courts, relies heavily on Article 19 which allows federal courts to take jurisdiction in cases even with a jurisdiction issue that would allow the case to proceed in a local or state court.

Chris Covert writes Mexican Drug War and national political news for Rantburg.com

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Mexican Supreme Court mulls fate of Colonel Arias Agredano

By Chris Covert
Rantburg.com

A Mexican Army colonel's fate awaiting a decision by the Mexican Suprema Corte de Justicia de la Nacion (SCJN) or Mexican Supreme Court, will have to wait longer, according to Mexican news accounts.

An article from a news dispatch which appeared in El Imparcial  news daily Monday afternoon, said that the court had discussed, sometimes in heated fashion whether the case of Colonel Jose Guadalupe Arias Agredano should be tried  in a civilian court for a murder he allegedly covered up, or if the Mexican military should have jurisdiction.

In April, 2012, an unidentified federal judge ordered annulled the military arrest warrant of Colonel Arias Agredano, the decision of which was appealed and was brought before the SCJN. Colonel Arias Agredano has asked the court to reverse the decision saying he is in physical danger should he be ordered to a civilian prison.

Charges against Colonel Arias Agredano come from the arrest of  Jethro Ramses Sanchez Santana who was detained by Veracruz municipal police agents on May 25th, 2011 in Veracruz state along with Horacio Cervantes Demessa, for the murder of Juan Francisco Sicilia Ortega earlier that March.

Sicilia Ortega was the son of Javier Sicilia, leader of the Mexican Movement for Peace and Justice with Dignity.  Sicilia Ortega was kidnapped and then later found strangled and stuffed into a vehicle along with seven other victims.  His murder sparked Javier Sicilia's formation of his peace movement, and several high profile protest demonstrations that spring and beyond.

Colonel Arias Agredano's alleged role in the murder of Sanchez Santana included his attempts to cover up the death of the detainee after he had choked to death on his own vomit during an interrogation.  Sanchez Santana  was later found dead on August 11th in Atlixco, Puebla.  Cervantes Demessa was later found in Coatetelco colony in Miacatlan municipality badly beaten.

Alleged in the incident was that Sanchez Santana had been beaten by two junior army officers during the interrogation.  Those officers have been identified as lieutenants Jose Guadalupe Orizaga y Guerra and Edwin Raziel Aguilar Guerrero.   Both lieutenants Orizaga y Guerra and Aguilar Guerrero  were also identified as the military officers who took custody of Cervantes Demessa and  Sanchez Santana from the Policia Federal detachment which originally detained the two suspects.  The detainees were later taken to a blacksmith shop located near the facilities of the Mexican 21st Infantry Battalion in Morelos state where they were beaten.

Both officers were arrested July 4th and confessed to the murder of  Sanchez Santana.

The legal issues being discussed Monday concern a July, 2011 SCJN decision that said human right cases involving military personnel must be tried in civilian courts.  The decision temporarily threw the Mexican military into an uproar.  Senior military officials, although protesting the decision later said that they would abide by the decision.

The decision came from a forced disappearance case of Radilla Pacheco, who was allegedly detained by a Mexican Army unit at a checkpoint in Guerrero state on August 25th, 1974, and was never seen again.  Radilla Pacheco's disappearance took place in the depths of Mexico's Dirty War between 1968 and 1982, when a succession of Mexican presidents used their military to deal harshly with radical and radical political movements, mostly in Guerrero state and central Mexico.

The Radilla Pacheco case had made it as far as the Inter American Court on Human Rights which ordered Mexico to investigate the case using civilian not military prosecutors.  A court case sent to the SCJN determined that all human rights cases involving Mexican military personnel must be prosecuted in civilian courts.

According to statistics provided by Mexican human rights groups about 1,500 cases of forced disappearances during the Dirty War can potentially be investigated by civilian courts.  But little news has emerged that any of those cases will be investigated under the new order.  Two high profile rape cases of two indigenous women that took place in 2002, were transferred from military to civilian courts last year in the wake of that decision, but it is unlikely either of those cases will ever see any criminal resolution.

Justice Juan Silva Meza

When the July, 2011 decision was announced, the president of the SCJN, Juan Silva Meza walked back the decision the next day, saying that Mexican federal judges would have complete discretion as to whether a case involving Mexican military personnel would be prosecuted in civilian or military courts.

According to the El Imparcial article, even that decision does not appear to as rigorously observed even by the very court which announced it.  One of the likely reasons why is that Mexican deputies have been pushing to reform the Mexican code of military justice Article 57, separating all but murder from the list of offenses which military prosecutors are required to prosecute.

Mexican president Felipe Calderon Hinojosa and his Secretaria de Defensa Nacional (SEDENA), the controlling agency for the Mexican Army, General Guillermo Galvan Galvan also have been urging deputies to reform Article 57.

Chris Covert writes Mexican Drug War and national political news for Rantburg.com

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