91
the present case, the Court observes that Article 215-A of the Federal Criminal Code does
not include that element, thus the definition of the crime is incomplete.
324. The Court values positively the efforts made by Mexico to adjust its domestic
legislation to its international obligations. Even though the legal classification currently in
force permits the punishment of certain behaviors that constitute forced disappearance of
persons, an adjustment that makes the international regulations in force in this subject fully
effective cannot be concluded from it. Thus, the Inter-American Court considers that the
State has failed to fully comply with the obligations imposed by Article 2 of the American
Convention in relation with Articles I and III of the CIDFP, in order to duly guarantee the
investigation and possible punishment of the facts that constitute forced disappearance in
the present case.
B.
Effective recourse for the protection of the right to personal liberty (habeas
corpus or appeal of relief)
325. The Inter-American Commission argued that [t]he next of kin of Rosendo Radilla did
not have access to [a] recourse that protected them from the violations to their human
rights. Despite the fact that at the time of the facts the Mexican legislation already
contemplated the figure of the appeal of relief, equivalent to the habeas corpus, which is
applied to clarify the whereabouts of a disappeared person, said appeal lacks effectiveness
in view of the stipulations of Articles 17 and 117 of the Law on the Appeal of Relief.” In that
same sense, the representatives argued that in Mexico the appeal of relief “[i]s not effective
in finding a person who has been the victim of a forced disappearance,” since “it does not
comply with the requirements necessary in order to be considered an effective recourse
pursuant with the criterion of the Inter-American Court on matters of forced
disappearances,” reason for which “the appeal of relief [is ineffective] for those cases.”
326. In the present case, the Court considers that no specific relationship between the
facts of the forced disappearance of Mr. Rosendo Radilla-Pacheco and the alleged
ineffectiveness of the appeal of relief of liberty established in Article 117 of the Mexican Law
on the Appeal of Relief has been proven. The next of kin of the victim did not file the appeal
of relief referred to. Thus, the Court does not warn, nor do the representatives specifically
substantiate, that in the case sub judice this alleged lack of effectiveness was a real obstacle
for the determination of the whereabouts of Mr. Rosendo Radilla-Pacheco. Therefore, it shall
not issue a ruling in that sense.
XI
REPARATIONS
(Application of Article 63(1) of the Convention)312
327. It is a principle of international law that any violation of an international obligation
that has caused damage entails the obligation to repair it adequately.313 That obligation is
312
Article 63(1) of the Convention states that:
If the Court finds that there has been a violation of a right or freedom protected by this
Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or
freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure
or situation that constituted the breach of such right or freedom be remedied and that fair
compensation be paid to the injured party.
313
Cf. Case of Velásquez Rodríguez v. Honduras. Reparations and Costs. Judgment of July 21, 1989. Series C
No. 7, para. 25; Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the
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