Court invalidates military authority to geolocate civilians in real time

The Supreme Court of Justice of the Nation (SCJN) invalidated in its entirety articles 299 of the Military Code of Criminal Procedures and 83 of the Code of Military Justice that empowered the Military Justice Prosecutor’s Office and the military public ministries to request the real-time geolocation of a person and to the preservation of data from the mobile phones of persons subject to investigation.

The invalidation of these articles is because the current wording of both regulations did not specify which people were subject to geolocation in real time, which implied the application on civilians of the military jurisdiction and without prior control by the respective judicial authority.

By continuing with the analysis of the challenges formulated by the National Human Rights Commission (CNDH) against the Decree by which various provisions of the Code of Military Justice (CJM) were reformed, added and repealed and the Military Code of Procedures was issued (CMPP), in force since 2016, the Supreme Court partially or totally invalidated two other articles of said norms.

In the case of article 361 of the CMPP, the Plenary of the Court ruled that the power granted to the armed forces to make a witness appear by force, without any compelling measure, even in the case of a civilian , constituted an undue extension of military jurisdiction about the lives of civilians.

With regard to 247, section V of the Military Code of Criminal Procedures, it is invalidates the investigative technique consisting of vehicle inspection without prior authorization from a judge, arguing that the challenged rule did not specify the scope of vehicle inspection, which could mean that civilians could also be subject to this type of inspection outside of military installations.

However, the Plenary of the Court validated at least 20 articles of the Code of Military Justice and the Military Code of Criminal Proceduresconsidering that said articles do not extend the military jurisdiction over the justice that corresponds to civilians

An information card from the SCJN indicates that all these articles were validated for not being contrary to the constitution or extending military justice to civilians.

– The articles 128, section VIII, 129, section XI and 212, of the CMPP, as well as 38 and 49 bis, section XII, of the CJM, where the Military Public Ministry and the Ministerial Military Police are empowered to require persons not subject to military jurisdiction to appear as witnesses or experts in the investigation of criminal acts of the military order.

This considering that civilians do not intervene as defendants or victims and, therefore, does not imply an extension of military jurisdiction.

– He article 87 of the CMPP, which provides for the obligation of “every person” to appear before the military court or the Public Ministry, when summoned; 123 of the same ordinance, which establishes the power of the military court to order the interview of a person or person involved in the procedure who has refused to do so with the defendant’s defender; as well as 357, which contemplates the duty of everyone to testify. This, considering that such cases do not imply an extension of military jurisdiction to the civilian sphere.

– He article 171 of the CMPP, where it is established that, in the event that the accused had been imposed as a precautionary measure an economic guarantee and fails to make an appointment to appear before the control judge, the guarantor will be required to present the accused and if he does not do so, the the guarantee is effective. This by virtue of the fact that there is no constitutional impediment for a civilian to grant a guarantee in favor of a military man, with the due consequences thereof.

– The articles 129, sections VII and XII; 136, fractions VI and VII; 247, section III; 248, 264, 352 and 367, of the CMPP, as well as 83, sections XIV, XIX and XXIII, of the CJM, where reference is made to the powers of the Military Ministerial Police; protection measures are established for the safety of the victim or offended; investigative powers are determined to be exercised exclusively with respect to the military and their possessions; the investigative acts that require prior authorization from the control judge are listed; powers are established to apply measures to enforce discipline and order in hearings; they specify obligations in favor of the military authorities and guarantee the protection of experts. The foregoing by not extending military jurisdiction to civilians.

– He article 101, section I, subsection b) and section II, subsection b), of the CMPPwhere the Public Prosecutor’s Office and the military jurisdictional bodies are empowered to impose fines on civilians as enforcement measures, since their execution corresponds to the federal fiscal authorities.

– The articles 283 and 286 of the CMPP, since the powers provided therein to carry out searches in ships, boats, aircraft or any means of transport, must be understood in relation to the function of preserving national security that the Constitution entrusts to the Armed Forces.

– He article 83, section XLV, of the CJMin which the Military Public Ministry is empowered to secure objects, instruments and proceeds of crime, since it does not imply an authorization to exercise that function in relation to civilians.

– The articles 73 of the CMPP and 83, section XLIII, of the CJM, which provide institutional collaboration mechanisms between the public ministry or the military police with federal authorities or some federative entity, so that the military authorities can collect information related to the investigation in any procedure in military matters. This considering that they allow military justice to obtain information through the corresponding institutional support, without exercising powers over civilians.

– The articles 103 of the CMPP and 83, section XLIX, of the CJMconsidering that the classification provided for in such precepts of information relating to personal data in criminal proceedings in the field of military justice, does not violate the right of access to public information and the principle of maximum publicity, since the limit The exercise of this right is provided for in the Constitution itself and comes from the protection of the fundamental right that all citizens have not to interfere in their private life.