updated information on the measures taken to find Mr. Radilla Pacheco or, if applicable, his
mortal remains.
C.
Obligation to adopt, within a reasonable time, the pertinent legislative
reforms in order to make article 57 of the Code of Military Justice compatible with
the American Convention on Human Rights, article 215A of the Federal Criminal
Code compatible with the Inter-American Convention on Forced Disappearance of
Persons, and both articles compatible with the relevant international standards
(tenth and eleventh operative paragraphs of the Judgment)
18.
The State reiterated that, on October 19, 2010, the Federal Executive had submitted
to the Congress of the Union the initiative for the issue of a decree, which “would reform,
partially annul, and add to, several provisions of the Code of Military Justice, [including its
article 57, and …] of the Federal Criminal Code[, including its article 215A…].” In this
regard, the State advised that the Joint Committees on Justice and on Legislative Studies of
the Senate had approved the report on the proposed decree, so that it had been forwarded
to the Plenary of the Senate. However, “the senators had not reached a consensus for [the
bill] to be discussed formally during the Plenary session […].” Therefore, according to the
State, “work was being done on a new bill that would permit compliance with the measure
established by the Court […].”
19.
Furthermore, regarding the modification of the Code of Military Justice, the State
reiterated that “the bill proposed to exclude from the military jurisdiction the crimes of
forced disappearance of persons, torture and rape, so that these fall within the competence
of the ordinary courts.”14 In addition, the State underlined that, under the above-mentioned
ruling of July 14, 201115 (supra considering paragraph 5), the Plenary of the Supreme Court
of Justice of the Nation had determined that national judges at all levels were obliged to
exercise, ex officio, control of conformity with the Convention in the terms established by
the Inter-American Court, and that the judges of the ordinary justice system must hear all
the cases of human rights violations presumably committed by members of the Armed
Forces. The SCJN also established that ordinary justice would have competence to hear all
the military cases that do not refer to military discipline alone.16
14
Cf. Case of Radilla Pacheco v. Mexico. Monitoring compliance with judgment. Order of the Inter-American
Court of Human Rights de 19 de mayo de 2011, seventeenth considering paragraph. In this Order, it was noted
that, according to the State, the said initiative “establishes the obligation of the Military Public Prosecution Service
to forward the summary of the findings of any inquiry it conducts and of those from which the possible perpetration
of the crimes mentioned can be inferred to the Federation’s Public Prosecution Service,” and stipulated that “the
measures taken that form part of the summary shall not lose their validity, even though [the Code of Military
Justice] was applied when taking them and, subsequently, the Code of Criminal Procedure”.
15
Cf. Ruling of the Plenary of the Supreme Court of Justice of the Nation of July 14, 2011, Case file Various
matters 912/2010. Published in the Official Gazette of the Federation on October 4, 2011. Annex to the State’s
brief of November 30, 2011 (file on monitoring compliance, tome III, folio 1471).
16
The State also indicated that, on another occasion, the Supreme Court of Justice of the Nation had
determined that “the Judiciary of the Federation must exercise, ex officio, a control of conformity with the
Constitution and the Convention of article 57, paragraph II, of the Code of Military Justice. […] Thus, the
interpretation of this principle of the Code of Military Justice must be interpreted that, in the face of situations that
violation the human rights of civilians, under no circumstance may the military justice system have jurisdiction
[…].” Cf. Ruling No. LXXI/2011 (9). “Restrictive interpretation of the military justice system. Incompatibility of the
actual text of article 57, paragraph II, of the Code of Military Justice, with the provisions of article 13 of the
Constitution, in light of Articles 2 and 8(1) of the American Convention on Human Rights” of June 10, 2011. Annex
to the State’s brief of May 30, 2012 (file on monitoring compliance, tome IV, folios 2327 a 2328).
8