CONCURRING VOTE OF JUDGE AD HOC ALEJANDRO CARLOS ESPINOSA IN RELATION TO THE JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS IN THE CASE OF FERNÁNDEZ ORTEGA ET AL. V. MEXICO, OF AUGUST 30, 2010 1. The present concurring vote is for the cited case ut supra as well as for the case of Fernández Ortega et al. v. México in consideration of the following reasons: a) It deals with soldiers in service, namely agents of the State of Mexico, that under special conditions committed grave violations of the domestic and international legal codes, which should have been observed in attention given their role as guarantors of the domestic legal system of the State of Mexico and regarding the rights of their co-nationals; b) The passive subject [victim] of the crime of rape for whom this case has unfolded, is a woman, poor, and indigenous, exposed to a high level of vulnerability; apart from not speaking the Spanish language; c) The Code of Military Justice is similarly applied to investigate crimes committed by soldiers and those in which civilian victims are found, in attention to the provisions of Article 57, section II, subsection a) of the mentioned legal code; that which was ordered modified in the case of Radilla Pacheco v. México; d) The unfavorable circumstances for the victims in regard to geo-referencing elements, access to justice, and health, as well as high vulnerability are similar; e) The delay was extreme in the preliminary investigation of the criminal procedure, and timely results by the various instances available in the search for justice were not produced, and f) The victims underwent torturous paths to obtain access to justice. 2. In this concurring opinion, I express my agreement with the logic of motivation and argumentation, and therefore, with the content of the Judgment, given the case analysis by the Inter-American Court of Human Rights that provoked the ruling in the case of Rosendo Cantú et al v. México, as well as with the criteria and sums for reparation of harm detailed in the Judgment, due to their nature and proportionality. I add in this statement, and in addition to the findings held in the Judgment, my reasoning ad cautelam derived from specifics that I find the State of Mexico should observe. 3. As indicated by the American Convention on Human Rights, the subsidiary nature of the Inter-American jurisdiction of human rights, in contrast to the domestic jurisdiction, is fundamental, given that it enhances and compliments that provided in the domestic laws of the American States; as such, I consider that the appropriate interpretation of Article 13 of the Constitution of the United Mexican States should harmonize not only Article 57, section II, subsection a) of the Code of Military Justice, but also the provisions enshrined in subsections b), c), d), and e), of the indicated normative instrument. 4. Despite the structural and normative weaknesses presented in the Code of Military Justice, which dates back to 1933, it should be noted that the State of Mexico was willing to investigate the case institutionally, but it is also evident that it did not go beyond carrying out routine procedures knowing that the facts would not be ascertained nor responsibility be

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