The Constitutional Court (TC) has issued a ruling by seven votes to five in which it warns that, in general, the military jurisdiction cannot prosecute civilians, except in very specific and exceptional circumstances. The ruling refers to an appeal for protection filed by two directors of a road transport company against the decision of the Jurisdiction Conflict Chamber of the Supreme Courtwhich attributed to the military jurisdiction knowledge of the investigation for crimes of document falsification, use of privileged information and active bribery in which they were found.
The alleged crimes investigated in the criminal case were procedurally connected to others against military treasury and bribery indirectly attributed to military personnel. This circumstance motivated the Investigative Court number 42 of Madrid to partially inhibit itself in favor of military jurisdiction, exclusively for the hearing of crimes attributed to various soldiers.
The military court number 1, which was responsible for hearing the case, in turn requested the inhibition of the investigating court, claiming the entire case from it. Said request was rejected by the ordinary jurisdiction, which gave rise to a conflict of jurisdiction whose resolution corresponds to the Jurisdiction Conflict Chamber, which in turn resolved the conflict in favor of the military jurisdiction, giving rise to the appeal for protection filed. before the Constitutional Court.
The ruling – for which Judge Juan Carlos Campo, from the progressive sector of the court, was the speaker – alludes to its jurisprudence and especially to that of the European Court of Rights (ECHR) to clarify that the Constitution reduces “to very narrow limits” the scope of military jurisdiction, the exercise of which “is constitutionally provided only in the strictly military sphere,” in accordance with article 117.5 of the Magna Carta. In the same sense, the ruling establishes three “constitutional conditions” for the exercise of the military jurisdictional function: that the crime investigated or attributed protects a strictly military legal asset; the military nature of the obligations or duties whose failure is classified as a crime, and the military status of the active subject of the crime; This last requirement cannot be ignored when defining the concept of “strictly military”.
The court considers that in light of these principles it must consider that in the reported case the right to the judge predetermined by the law to prosecute the amparo plaintiffs was violated. The Constitutional Court reasons that “the scope of what is strictly military cannot be determined exclusively by the need to protect military legal assets, leaving aside the civil or military status of those investigated.” The ruling emphasizes that, despite the procedural connection that exists in the case analyzed between the civil and military crimes under investigation, the conflict of jurisdiction must be resolved “with special attention to the fact that the appellants for protection are civilians who have allegedly committed, civil crimes under the jurisdiction of ordinary jurisdiction, and not military crimes.”
The five votes against granting the amparo are those of judges Ricardo Enríquez, Enrique Arnaldo, Concepción Espejel and José María Macías Castaño, belonging to the conservative sector of the court. All of them will express in a written dissenting vote their disagreement with the interpretation made by the progressive majority on the scope of military jurisdiction, considering it excessively restrictive.