22.
At the same time, the Court observes that, according to the proposed reform, the
measures carried out by the public ministry prior to its “release” to the ordinary jurisdiction
would be valid. In the Judgment, the Court referred to the military jurisdiction's lack of
competence not only to try and, if applicable, punish those responsible, but also to
15
investigate all acts that violate the human rights of civilians. From the foregoing, it is
evident that the military prosecutor does not have competence to investigate such human
rights violations either. Therefore, the Court urges the State to adopt measures directed
toward amending Article 57 of the Code of Military Justice to make it compatible with the
standards set out in the Judgment.
23.
As to the representatives' observation regarding the lack of domestic recourses to
dispute the military forum's jurisdiction, the Court considers that though it discussed the
matter in its Judgment, the order that the State reform Article 57 of the Code of Military
Justice was limited to adapting this article to the standards of exceptionality and restriction
that characterize criminal military jurisdiction. Thus, the Tribunal shall not rule on the
representatives' additional allegations.
D.
Obligation to adopt legislative reforms appropriate for the purpose of
making Article 215A of the Federal Criminal Code compatible with international
standards on the subject and with the Inter-American Convention on the Forced
Disappearance of Persons (Operative Paragraph 11 of the Judgment)
24.
The State indicated that the same initiative mentioned in the section above “includes
reforms to the Federal Criminal Code on the topic of forced disappearance that fully comply
with the Judgment.” The text of the proposed reform states that “the public servant who, on
his own or through others, commits, permits, authorizes, or supports the deprivation of
liberty of one or more persons and intentionally brings about or maintains that person or
persons hidden in any way, or refuses to acknowledge that deprivation of liberty, or to
inform on the whereabouts of the person, is considered to have committed the crime of
forced disappearance of persons.” Additionally, the State maintained that the crime “may
also be committed by a private individual when he or she acts on the order, or with the
acquiescence or support, of a public servant.” The initiative also proposes that the crime
prescribe after thirty-five years, a prohibition of amnesty, pardons and “pre-release
benefits,” or any other substitutes regarding this crime and that, pursuant to Article 215B of
the Federal Criminal Code, the sentence for public servants who commit this crime should
be 20 to 50 years in prison, and that the sentence for private individuals be set at 10 to 25
years in prison.16
García and Montiel Flores v. Mexico. Preliminary Objections, Merits, Reparations and Costs.
November 26, 2010, Series C. No. 220, para. 206.
14
Cf. Case of Radilla Pacheco v. Mexico, supra note 5, para. 274.
15
Cf. Case of Radilla Pacheco v. Mexico, supra note 5, para. 273.
The State manifests that the following is the text of the initative reform:
16
Judgement of
Article 215 A. The public servant who, on his own or through others, commits, permits, authorizes, or
supports the deprivation of liberty of one or more persons and intentionally brings about or maintains that
person or persons hidden in any way, or refuses to acknowledge that deprivation of liberty, or to inform on
the whereabouts of the person commits the crime of forced disappearance of persons.
The crime defined in the preceding paragraph may also be committed by a private individual when he or
she acts on the order, or with the acquiescence or support, of a public servant.
This crime prescribes after a period of thirty-five years.
Amnesty, pardons, pre-release benefits, or other substitutes are not applicable to this crime.
9