52
ARTICLES 8(1) (RIGHT TO A FAIR TRIAL)161 AND 25(1) (JUDICIAL
PROTECTION),162 IN RELATION WITH ARTICLES 1(1) (OBLIGATION TO RESPECT
RIGHTS) AND 2163 (DOMESTIC LEGAL EFFECTS) OF THE AMERICAN CONVENTION
AND ARTICLES I, SUBPARAGRAPHS A) AND B), IX, AND XIX164 OF THE INTERAMERICAN CONVENTION ON FORCED DISAPPEARANCE
173. In the present chapter the Tribunal will examine the arguments regarding the right to
a fair trial and the obligation to carry out effective investigations, in relation to the arrest and
subsequent forced disappearance of Mr. Rosendo Radilla-Pacheco. In first term, the Court
will analyze the lack of diligent and effective investigations within the ordinary justice
system. Later, the Tribunal will assess the application of military jurisdiction in the present
case.
174.
Before referring to those aspects, it is appropriate to mention that the State
requested that the Tribunal “[e]specially assess the diligences carried out by the National
Human Rights Commission within the investigation in different cases of alleged forced
disappearances occurred in the seventies and eighties.” In that sense, the State referred
specifically to the investigation carried out by said organization regarding the specific case.
175. The Tribunal observes that, according to that indicated by the State, the National
Human Rights Commission is an “organization of constitutional status” that is part of the
“national non-jurisdictional system for the protection of human rights” with the power “[t]o
161
Article 8(1) states that:
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established by law, in the substantiation of
any accusation of a criminal nature made against him or for the determination of his rights and
obligations of a civil, labor, fiscal, or any other nature.
162
Article 25(1) states that:
Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent
court or tribunal for protection against acts that violate his fundamental rights recognized by the
constitution or laws of the state concerned or by this Convention, even though such violation may have
been committed by persons acting in the course of their official duties.
163
Article 2 states that:
Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by
legislative or other provisions, the States Parties undertake to adopt, in accordance with their
constitutional processes and the provisions of this Convention, such legislative or other measures as may
be necessary to give effect to those rights or freedoms.
164
Article IX states, in what is relevant, that:
Persons alleged to be responsible for the acts constituting the offense of forced disappearance of persons
may be tried only in the competent jurisdictions of ordinary law in each state, to the exclusion of all other
special jurisdictions, particularly military jurisdictions.
The acts constituting forced disappearance shall not be deemed to have been committed in the course of
military duties.
Article XIX states that:
The states may express reservations with regard to this Convention when adopting, signing, ratifying or
acceding to it, unless such reservations are incompatible with the object and purpose of the Convention
and as long as they refer to one or more specific provisions.
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