76
of human rights violations attributed to members of the Mexican armed forces,
whether or not they are on active service. Furthermore, they asked the Court to
order the Mexican State to carry out legislative reforms in order to provide the
victims of an offense or the aggrieved parties with access to an effective remedy for
the protection of their rights, and specifically to contest the submission of their case
to the military jurisdiction.
235. In the Court’s opinion, it is not only the enactment or the suppression of
domestic legal provisions that guarantee the rights contained in the American
Convention. Pursuant to the obligation established in its Article 2 of said
instrument, the State must also develop practices leading to the effective
observance of the rights and freedoms embodied in the Convention. The existence
of a norm does not, in and of itself, guarantee that its application will be adequate.
The application of the norms or their interpretation, as jurisdictional practices and
expressions of the State’s public order, must be adapted to the objective sought by
Article 2 of the Convention. In practical terms, as the Court has already
established, the interpretation of Article 13 of the Mexican Constitution must be
coherent with the constitutional and the treaty-based principles of due process and
access to justice contained in Article 8(1) of the American Convention and the
pertinent provisions of the Mexican Constitution.245
236. In its jurisprudence, the Court has established its awareness that domestic
authorities are subject to the rule of law and, consequently, that they are obliged to
apply the provisions of the laws that are in force in the legal code.246 Nevertheless,
when a State is a party to an in international treaty such as the American
Convention, its judges, as part of the State apparatus, are also subject to such a
treaty, and this obliges them to ensure that the effects of the provisions of the
Convention are not diminished by the application of norms contrary to its object
and purpose. The Judicial branch must exercise control ex officio of the
harmonization of the domestic norms with the American Convention, evidently
within the framework of their respective competences and the corresponding
procedural rules. In this task, the Judicial branch should bear in mind not only the
treaty, but also the interpretation of it made by the Inter-American Court, definitive
interpreter of the American Convention.247
237. Hence, the constitutional and legislative interpretations concerning the
criteria for the personal and subject matter jurisdiction of the military jurisdiction in
Mexico needs to be adapted to the principles established in the Court’s
jurisprudence, which have been reiterated in the present case. This implies that,
irrespective of the reforms to the law that the State may adopt (infra paras. 239
and 240), in this case, it is incumbent on the judicial authorities, based on the
“control of the harmonization of domestic law with the Convention,” to order
immediately and ex officio that the facts be heard by the ordinary criminal justice
system.
238. On the other hand, the Court recalls that it has already found, in the case of
Radilla Pacheco, that it is not necessary to order the amendment of the normative
content that regulates Article 13 of the Political Constitution of the United Mexican
States.
245
Cf. Case of Radilla Pacheco, supra note 33, para. 338.
246
Cf. Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits, Reparations, and
Costs. Judgment of September 26, 2006. Series C No. 154, para. 124; Case of La Cantuta v. Perú.
Merits, Reparations, and Costs. Judgment of November 29, 2006. Series C No. 162, para. 173, and Case
of Radilla Pacheco, supra note 33, para. 339.
247
Cf. Case of Almonacid Arellano, supra note 246, para. 124; Case of Boyce et al. v. Barbados.
Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 20, 2007, Series C No.
169, para. 78, and Case of Radilla Pacheco, supra note 33, para. 339.
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