28
to those rights or freedoms.” Hence the phrase "or other measures" includes
"constitutional interpretations" that allow the applicability of the rights with greater
effectiveness and reach, in terms of the pro homine principle enshrined in Article
29 of the Pact of San José. This could be cause for reflection to overcome the
jurisprudential criteria mentioned by the Plenary of the Supreme Court of Justice of
the Nation.
74.
The pro homine principle has been considered by a Mexican tribunal of
“obligatory application,” given that it is foreseen in international treaties that form
part of the Supreme Law of the Union in terms of the reproduced Article 133 of the
Federal Constitution. In this way, it was established by the Fourth Collegiate
Tribunal on Administrative Matters of the First Circuit, upon deciding on the direct
amparo 202/2004, on October 20, 2004, forming thesis I.4º.A.464 A, whose rubric
and text are:102
PRO HOMINE PRINCIPLE. ITS OBLIGATORY APPLICATION.
The pro homine principle implies that the legal interpretation must always
seek the greatest benefit to man, that is, it should be set to the most
comprehensive standard or broad interpretation when it comes to protected
rights and, in contrast to the standard or narrower interpretation when it
comes to setting limits to its exercise provided for in Article 29 of the
American Convention on Human Rights and 5 of the International Covenant
on Civil and Political Rights, published in the Official Gazette of the
Federation on May 7 and 20, 1981, respectively. However, as these treaties
are part of the Supreme Law of the Union under Article 133 of the
Constitution, it is clear that this principle should be applied on a compulsory
basis. (Emphasis added).
75.
The “constitutional” and “legal” interpretations carried out by the
judges and bodies that impart justice in Mexico at all levels, must be carried
out in the light, not only of the international instruments whose commitment
is taken on by the State of Mexico, but also by the jurisprudence of the I/A
Court of H.R.. The latter, given that it constitutes a judicial organ of the InterAmerican System for Protection of Human Rights at the international seat,
whose jurisdiction is the application and interpretation of the American
Convention; this body in reality determines the same content of the
Conventional text, in such a way that the interpreted norm acquires direct
effectiveness in Mexico, upon the Pact having been signed by the State of
Mexico and having been recognized the jurisdiction of the I/A Court of H.R..
As established in the Judgment of the Case of Cabrera García and Montiel
Flores, that motivates the present concurring opinion (and that applies to the
three cases mentioned):
233. Hence, as indicated in the case of Radilal Pacheco, Fernandez Ortega
and Rosendo Cantu, it is necessary that the constitutional and legislative
interpretations concerning the criteria for the personal and subject matter
jurisdiction of the military jurisdiction in Mexico needs to be adapted to the
principles established in the Court’s jurisprudence, which have been
reiterated in the present case103 and that apply for all violations of human
102
Published in the Semanario Judicial de la Federación y su Gaceta, Novena Época, TCC, Tome
XXI, February 2005, p. 1744.
103
Cf. Case of Radilla Pacheco v. United Mexican States, supra note 19, para. 340; Case of
Fernández Ortega et al.. v. México, supra note 21, para. 237, and Case of Rosendo Cantú et al. v.
México, supra note 22, para. 220.
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