82
288. With regard to the general obligation of adjusting the domestic legislation to the
Convention, the Court has stated on several opportunities that “[i]n international law, a rule
of customary law indicates that a State that has signed an international agreement, should
introduce in its domestic legislation the modifications necessary to guarantee the execution
of the obligations assumed.”283 In the American Convention, this principle is enshrined in its
Article 2, which establishes the general obligation of each of the State Parties to adjust its
domestic legislation to its stipulations, in order to guarantee the rights acknowledged by it,
which implies that the measures of domestic legislation must be effective (principle of effet
utile).284
289. Therefore, the Tribunal considers that the State failed to comply with the obligation
included in Article 2 of the American Convention, in connection with Articles 8 and 25 of the
same, upon extending the competence of the military jurisdiction to crimes that do not have
a strict connection with military discipline or with juridical rights characteristic of the military
realm.
B2.
Effective recourse to challenge the military jurisdiction
290. Both the Commission and the representatives of the alleged victims argued that
Article 25(1) of the Convention has also been infringed because the next of kin of Mr.
Rosendo Radilla-Pacheco could not contest the forwarding of the case to military jurisdiction
(supra paras. 266 through 267).
291. The Court has stated that Article 25(1) of the Convention contemplates the
obligation of the States Parties to guarantee access, to all of the people under its
jurisdiction, to an effective judicial recourse against acts that violate their fundamental
rights.285
292. In this regard, it can be concluded from the facts of the present case that once the
Second District Court decided to decline its competence in favor of the military jurisdiction,
Mrs. Tita Radilla-Pacheco filed an appeal for protection to revoke that decision. However,
this complaint was dismissed in first instance (supra para. 262) since based on Article 10 of
the Law on the Appeal of Relief “[t]he injured party or victim of the crime, can only try
appeals for guarantees when it refers to any act […] related directly and immediately with
the reparation of the damage […].”286 Said decision also indicated that:
[i]n the Mexican legal system, the proceedings of a criminal nature are carried out only between
the defendant and the Public Prosecutors’ Office, bearer of the criminal action, who exercises the
monopoly of the same and, therefore, is entitled to carry out the defenses during the proceeding
of each and everyone of the acts that occur during the same and that affect its correct
performance, [among] which […] there are procedural issues such as those that refer to the
Tribunal before which the case shall be resolved based on jurisdiction, a matter that may be
analyzed through the means of defense presented before the competent instances in terms of
Article 367, fraction VIII of the Federal Code of Criminal Procedures; an appeal that […] can only
283
Cf. Case of Garrido and Baigorria v. Argentina. Reparations and Costs. Judgment of August 27, 1998.
Series C No. 39, para. 68; Case of Zambrano Vélez et al. v. Ecuador, supra note 51, para. 55, and Case of
Heliodoro Portugal v. Panama, supra note 24, para. 179.
284
Cf. Case of Garrido and Baigorria v. Argentina, supra note 283, para. 68; Case of Zambrano Vélez et al. v.
Ecuador, supra note 51, para. 55, and Case of Heliodoro Portugal v. Panama, supra note 24, para. 179.
285
Cf. Case of Velásquez Roríguez v. Honduras, supra note 24, para. 91; Case of Acevedo Buendía et al. v.
Peru, supra note 139, para. 69, and Case of Kawas Fernández v. Honduras, supra note 40, para. 110.
286
Cf. Judgment of the Sixth District Court in the State of Guerrero, of September 6, 2005, dossier PRAL.
854/2005 (dossier of appendixes to the brief of pleadings and motions, appendix F(3), folio 2033).
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