37
77.
Following, the Court must, in determining the scope of its jurisdiction in the
instant case, set forth its reasons if it accepts and welcomes the reasons alleged by
the Commission and the representatives of the alleged victim and his next of kin, in
the sense that some of the events or acts that took place prior to December 16,
1998, are of a continuous or permanent nature or have “continuous effects.”
78.
The Court must determine whether the alleged offence of torture as alleged
by the Inter-American Commission and the representatives of the alleged victim and
his next of kin is an instantaneous offence 12 or a continuing or recurrent offence 13 .
Each act of torture is consummated or terminated within itself, the perpetration
thereof not extending over time, for which reason the alleged act, or acts, of torture
to the detriment of Mr. Martín-del-Campo falls short of the Court’s jurisdiction in that
it is an instantaneous act and because of the fact that it occurred prior to December
16, 1998. In like manner, the sequels of torture alleged by the representatives of
the alleged victim and his next of kin are not equivalent to a continuous offence. It
is appropriate to point out that the Court has, in its constant jurisprudence,
reiterated its absolute objection to torture, as well as the duty of the States Parties
to investigate, prosecute and punish those responsible for the application of torture.
79.
It is necessary for the Court to point out with total clarity on this matter that,
if the alleged offence was continuous or permanent, the Court would have
jurisdiction to decide concerning acts or events that occurred after recognition of the
Court’s jurisdiction 14 . But in a case of this nature, the alleged offence that would be
the cause of the violation alleged (torture) was instantaneous; it occurred and
became consummated before recognition of the contentious jurisdiction. Concerning
investigation of the offence, said investigation did take place and was reopened on
several occasions.
This occurred after recognition of the court’s contentious
jurisdiction, but neither the Commission nor the representatives of the alleged victim
have provided elements concerning the effects suffered, on the basis of which
specific violations of the due process could have been identified and with respect to
which the Court would have been able to hear the case.
80.
Nor can the Court hear any of the facts relative to the penal proceedings
within the internal jurisdiction against Mr. Alfonso Martín-del-Campo, including
alleged arbitrary detention and incarceration and alleged denial of justice, since the
regular processing of this case ended with the February 09, 1998, decision of the
First Section of the Supreme Court, which decided to dismiss, on the basis of non
applicability, the revision remedy entered by Mr. Martín-del-Campo on January 19,
1998, against the December 02, 1997, judgment of the Fourth Penal Court of the
Distrito Federal First Circuit (supra para. 58.1.20).
81.
The recognition of innocence remedy entered by Mr. Martín-del-Campo before
the Seventeenth Penal Section of the Distrito Federal Superior Court on April 05,
1999, after recognition by Mexico of the Court’s contentious jurisdiction on December
12
The offence is construed as instantaneous when the execution of its constituting elements marks
the end of its consummation.
13
It is maintained that the offence is continuous or permanent when its consummation extends
over time.
14
and 40.
Cfr. Case of Blake. Preliminary Objections. Judgment of July 02, 1996. Series C No. 27, para. 39