94
336. In the present case it has been established that Mr. Rosendo Radilla-Pacheco
continues to be missing (supra para. 158). Therefore, the State shall, as a means of
reparation of the victims’ right to the truth,318 continue with an effective search and
immediate location of him, or that of his remains, either through a criminal investigation or
through another adequate and effective procedure. The diligences performed by the State
in order to determine the whereabouts of Mr. Radilla-Pacheco or, if it were the case, the
exhumations in order to locate his remains shall be carried out in agreement and the
presence of the next of kin of Mr. Rosendo Radilla, as well as the experts, and legal
representatives. Additionally, in the event that the remains of Mr. Radilla-Pacheco are
located, they shall be delivered to his next of kin prior genetic proof of the relationship, as
soon as possible and without any cost whatsoever. The State shall cover the funeral costs,
according to the beliefs of the Radilla Martínez family and in common agreement with them.
C2.
Reforms to legal stipulations
i)
Constitutional and legislative reforms in matters of military jurisdiction
337. The representatives asked this Court to order that the State make a reform to Article
13 of the Constitution, which regulates military jurisdiction, based on the fact that, “[e]ven
though in principle the article does not seem to generate any problem whatsoever, the
interpretations that have been made of the same[, …] result in the need to request its
reform in order to reach the necessary precision, which shall prevent that members of the
Mexican army be prosecuted by military courts even when they have committed violations
of human rights.”
338. For this Tribunal, not only the suppression or issuing of the regulations within the
domestic legislation guarantee the rights enshrined in the American Convention, pursuant
with the obligation included in Article 2 of that instrument. The development of State
practices leading to the effective observance of the rights and liberties enshrined in the
same is also required. Therefore, the existence of a regulation does not guarantee in itself
that its application will be adequate. It is necessary that the application of the regulations
or their interpretation, as jurisdictional practices and a manifestation of the state’s public
order, be adjusted to the same purpose sought by Article 2 of the Convention.319 In
practical terms, the interpretation of Article 13 of the Political Constitution of Mexico shall
be coherent with the conventional and constitutional principles of the due process of law
and the right to a fair trial, included in Article 8(1) of the American Convention and the
relevant regulations of the Mexican Constitution.
339. With regard to judicial practices, this Tribunal has established, in its jurisprudence,
that it is aware that the domestic judges and tribunals are subject to the rule of law and
that, therefore, they are compelled to apply the regulations in force within the legal system.
320
But once a State has ratified an international treaty such as the American Convention,
its judges, as part of the State’s apparatus, are also submitted to it, which compels them to
make sure that the provisions of the Convention are not affected by the application of laws
contrary to its object and purpose, and that they do not lack legal effects from their
318
Cf. Case of the Caracazo v. Venezuela. Reparations and Costs, supra note 317, para. 122; Case of Ticona
Estrada v. Bolivia, supra note 23, para. 84, and Case of Anzualdo Castro v. Peru, supra note 44, para. 185.
319
Cf. Case of Castillo Petruzzi et al. v. Peru, supra note 54, para. 207; Case of Ximenes Lopes v. Brazil.
Merits, Reparations, and Costs. Judgment of July 4, 2006. Series C No. 149, para. 83, and Case of Almonacid
Arellano et al. v. Chile, supra note 19, para. 118.
320
Cf. Case of Almonacid Arellano et al. v. Chile, supra note 19, para. 124, and Case of La Cantuta v. Peru,
supra note 51, para. 173.
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