it would not forward the case to the civil authorities. In response, on February 11, 2003, the alleged victim lodged an amparo petition, which was decided by the Juez Quinto de Distrito “B” de Amparo en Material Penal en el Distrito Federal [Fifth Judge of Amparo for Criminal Matters, District “B”, in the Federal District], who on April 29, 2003, ordered a dismissal of the trial on constitutional rights (amparo). 14. Although it was possible to lodge an appeal for a review of the amparodecision, the petitioners argue that the alleged victim decided against this course, since “an indirect appeal for an amparo review is inappropriate recourse and ineffective as it is beforehand destined to be denied.”6 This decision was grounded in precedents indicating that the Judiciary has not considered illegal for the military courts to hear cases of violations of human rights of civilians on the part of military personnel. For this reason, the petitioners invoke the exhaustion of domestic remedies provided for by Article 46(1)(a), as well as the exception to the rule on exhaustion of domestic remedies provided for by Article 46(2)(c) of the American Convention. B. The State 15. In response to the complaint, the Mexican State contends that, in March 2002, the Procuraduría General de Justicia Militar [Office of the Attorney General for Military Justice] began a preliminary inquiry under No. 35ZM/05/2002, in response to a newspaper report accusing military personnel of beating a young girl of the Tlapanec people. This Preliminary Inquiry, begun at the same time as the inquiry initiated by the Procuraduría General de Justicia del Estado de Guerrero [Office of the Attorney General of the State of Guerrero], was forwarded to the Sector Central [Central Sector] of the Office of the Attorney General for Military Justice], under number SC/069/2002-XIV. 16. The State contends that on May 15, 2002, the Office of the Attorney General of the State of Guerrero decided to disqualify itself, referring the case to military jurisdiction, and on January 20, 2003, the Office of the Attorney General for Military Justice found that it had jurisdiction to continue with the inquiries related to the case. 17. The State notes that on March 5, 2002, the Comisión de Defensa de los Derechos Humanos (CDDH) [Commission for the Defense of Human Rights] of the State of Guerrero lodged a complaint prompted by the alleged victim and her representative’s report. Following some processing of its own, the CDDH referred the complaint file to the Comisión Nacional de Derechos Humanos (CNDH) [National Human Rights Commission] for jurisdictional reasons, i.e., that it was likely that “those responsible for the violation were public servants.” The State argues that the CNDH, in December 2002, closed the case file for lack of evidence that the petitioner had been the victim of rape. 18. The State contends that domestic remedies have not been exhausted, since this case is in the first stage of a criminal proceeding, i.e., the preliminary inquiry. In this inquiry, several proceedings have been carried out, such as the taking of depositions of the petitioner, of members of the community, and of several armed forces personnel, some of whom stated that the facts given in the complaint of the alleged victim are false.7 The State further argues that, when the petitioners failed to appeal the last amparo petition lodged, the judgment became final. 19. The State argues that it carried out an identification proceeding, in which the alleged victim did not single out any of the soldiers lined up for her identification. The State contends that this was carried out despite the fact that, according to the testimony to the infantryman Eudelio Flores Bernardino, in deposition taken by the military prosecutor attached to Military Zone 35 stated that “…after they lined up the military personnel for her, I saw that Mr. Encarnación Sierra drew near to Ms. Valentina Rosendo Cantú and told her in Tlapanec dialect 6 Petitioners’ communication dated November 6, 2003, p. 12. The petitioners also submitted a press release No. 025 issued by the Secretaría de Defensa Nacional [Ministry of National Defense] (SEDENA), which denies the possibility that enlisted men could have sexually assaulted the alleged victim. 7 State’s response dated March 23, 2004, pp. 3 - 4. 4