6
permits duly attributing participation in the facts and, if appropriate, the guilt of the
State agents. Proceeding in any other way could violate articles 14, 16 and 20 of the
Constitution, as well as articles 8, 24, and 25 of the Convention owing to failure to
provide adequate judicial guarantees and protection, especially regarding the
presumption of innocence. The State highlighted that “all the stages of the
investigation in this case will be carried out exhaustively in order to elucidate the
facts and thereby safeguard the constitutional rights of the accused,” and it indicated
that “if the authorities do not respect these principles, which are also in keeping with
the standards set by [the] Court, they would be violating the provisions of Mexican
law and the guarantees established in the […] Convention.”
19.
Fifth, Mexico reiterated the need for the Court to “clarify the meaning of
paragraph 105 of the judgment in relation to paragraphs 104, 106, 107 and 161.” In
this regard, it pointed out that, having established in paragraph 105 that it was not
incumbent on the Court to establish individual responsibilities, the Court then “refers
to the rape of Mrs. […] Rosendo Cantú.” According to the State, “the Court
proceeded to evaluate the facts within its specific contentious jurisdiction in the area
of human rights, as revealed by paragraph 107[.] This matter becomes important
because, in paragraph 194, […] the Court itself emphasized […] the guiding
principles that should be observed in criminal investigations into human rights
violations. According to the provision that domestic legislation must be adapted to
the Convention, it is important that the Court take into consideration that, once each
of [those] principles has been complied with […] in the investigations into the rape
allegedly committed by soldiers, […] it will not depend solely and exclusively on the
Public Prosecution Service to determine whether or not a crime has been committed,
[…] but rather on the ruling that, if appropriate, is issued by the competent judicial
authority.” Consequently, the judgment should not “be interpreted as a order or
instruction that necessarily leads to the criminal prosecution of eight soldiers […] or
imposing punishment on the eight individuals referred to in the judgment because, in
addition to the fact that the Court cannot individualize responsibilities, it did not
order these measures.” The State therefore requested that “the scope of paragraphs
104, 106 and 161 be clarified, both because [the] Court did not establish individual
criminal responsibilities (because it confined its ruling to its contentious jurisdiction)
and because, in the tenth operative paragraph, it ordered that the investigations be
conducted and, as appropriate, criminal proceedings be filed against those found
responsible so that the competent judicial authority could rule on the existence of
criminal responsibilities and, if appropriate, impose the legal punishments and
consequences.” The State concluded that the judgment “is unclear” and therefore
requested clarification of whether “it should be understood in the sense that the
investigations and the criminal prosecution must have the specific sole and
unequivocal result of punishing eight soldiers.”
20.
Finally, sixth, the State affirmed that it was “concerned […] that the Court’s
decision entails a violation of the principle of the presumption of innocence
established in Article 8(2) of the Convention, […] given that paragraph 105 in
relation to paragraphs 104, 106, 107 and 161 suggests that, based on the judgment,
the domestic public prosecution and judicial authorities must necessarily seek out
and punish eight guilty parties.”
21.
The Inter-American Commission recalled that for an international court, the
standards for appraising evidence are less formal than under domestic legal systems
and that, in its proceedings, the Inter-American Court can find indications of the
participation of agents that entail the State’s responsibility. It considered that the