7
preliminary inquiry No. 5ZM/04/2010 on February 26, 2010, in view of the decline of assumption of jurisdiction by
the ministerial authority of the Office of the Attorney General of the Republic. The investigation was initiated into
the presumed perpetration of the crime of abuse of authority, and later it was ordered to be definitively closed. On
December 29, 2011, the proceedings of the military court were forwarded to the Office of the Attorney General of
the Republic.
34.
Under regular jurisdiction, inquiries were begun by the Unit for the Investigation of Absent,
Misplaced and Missing People, and by the Special District Attorney’s Office for Violent Crimes against Women and
Human Trafficking. According to the available information, the investigation is currently under the responsibility of
the Office of the Attorney General of the Republic, which is conducting preliminary inquiry
AP/PGR/CHIH/JUA/3634/2011 for the presumed crime of deprivation of liberty to the detriment of Nitza Paola,
Rocio Irene, and José Ángel Alvarado.
35.
Secondarily and with regard to the legal proceedings, the Commission observes that on January
6, 2010, an amparo appeal was lodged with the Sixth District Court, denouncing the “illegal detention and
subsequent disappearance” of Nitza Paola, Rocio Irene, and José Ángel Alvarado. In processing the appeal, it was
determined that “[the] military garrison does not hold regular authority.” Moreover, by a ruling dated June 6,
2011, the file was ordered definitively closed since the complaint was determined not be have been lodged
because it had not been ratified by the direct aggrieved parties.
36.
In this regard, the IACHR understands that the amparo appeal is the equivalent of habeas corpus
appeal under Mexican law. It observes that the latter was filed for the purpose of ascertaining the whereabouts of
the presumed victims, but that it was rejected in limine due to a lack of ratification of the complaint by the directly
affected parties, which, in the present case, would have been the persons alleged to have been disappeared. In
view of the above, the Commission considers that although the petitioners exhausted the appropriate appeal for
the situation denounced, the appeal was not effective under the terms of Article 46.2.a for ascertaining the
9
whereabouts of Nitza Paola, Rocio Irene, and José Ángel Alvarado.
37.
Further, the Commission observes that in spite of the steps taken by domestic authorities, the
investigation into the alleged disappearance of the presumed victims has not advanced to determine their
whereabouts three years after the facts occurred. Within this framework, the Commission reiterates that special
jurisdictions, such as the military or the police, do not constitute appropriate forums and as a result do not provide
an appropriate appeal for investigating, judging, and punishing possible violations of the human rights enshrined in
10
the American Convention. In this regard, the IACHR bears in mind the time that the investigation related to the
facts of this petition was under the responsibility of military authorities. Given the characteristics of this petition
and the available information, the Commission considers that the exceptions stipulated in Article 46.2.c) of the
American Convention concerning unwarranted delays in the development of domestic legal processes are
applicable, and the requirement on exhaustion of domestic remedies is not enforceable.
38.
It only remains to mention that invoking the exceptions to the rule of exhaustion of domestic
remedies stipulated in Article 46.2 of the Convention is closely linked to the determination of possible violations of
certain rights enshrined in the Convention, such as the right to a fair trial. However, due to its nature and purpose,
Article 46.2 is autonomous as compared to the substantive standards of the Convention. Therefore, determination
of whether the exceptions to the rule of exhaustion of domestic remedies are applicable in this case must be
carried out previously and separately from the analysis of the substance of the matter, since it depends on a
different standard of appraisal than that used to determine possible violation of Articles 8 and 25 of the
Convention. It should be pointed out that the causes and effects that impeded exhaustion of domestic remedies
9
IACHR, Admissibility Report No. 75/07, Petition 12.322. Antonio González Méndez vs. Mexico. October 15, 2007, paragraph 47.
10
IACHR, Report No. 64/01, Petición 11.712, Leonel de Jesús Isaza Echeverry et al., Colombia, April 6, 2001, paragraph 22. See also,
Inter-American Court, Case of Durand and Ugarte. Judgment of August 16, 2000, Series C No. 68, paragraph 117.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents