29
rights that are alleged to have been committed by members of the armed
forces. This implies that, irrespective of the reforms to the law that the
State may adopt, 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. 104 (Underlining added).
76.
The intentionality of the I/A Court of H.R. upon referring to the expressions
“immediately”105 and “ex oficio,”106 denote a “direct” action of all the Mexican
judges to exercise the “diffused control of conformity with the Convention” without
the need for prior declarations by any body of the Mexican State and regardless of
whether the parties invoked it. Here the standard of the ad hoc judge Roberto de
Figueriedo Caldas is noteworthy:107
5. For all States of the American Continent, which have willingly adopted it,
the Convention is the equivalent to a supranational Constitution pertaining
to Human Rights. All public powers and national spheres, as well as the
respective Federal, state and municipal legislatures of all adherent States
are under obligation to respect it and conform it. (underlining added).
77.
The Mexican judges must, on the one hand, carry out constitutional and
legal interpretations that allow “the victims of the violations of human rights and
their next of kin have the right to have said violations heard and resolved by a
competent tribunal, pursuant with the due process of law and the right to a fair
trial. The importance of the passive subject transcends the sphere of the military
realm, since juridical rights characteristic of the ordinary regimen are involved”;108
so that "this conclusion applies not only to cases of torture, forced disappearance
and rape, but to all human rights violations"109 (underlining added). So that the
obligation of the Mexican judges is "immediate" and with "independence of the
legal reforms that the State should adopt" (amendment to Article 57 of the Code of
Military Justice)." This becomes more important if we consider the text of Article 13
of the Mexican Federal Constitution, 110 a provision that deems conventional the I/A
104
Cf. Case of Fernández Ortega et al. v. México, supra note 21, para. 237, and Case of Rosendo
Cantú et al. v. México, supra note 22, para. 220.
105
“Without the interposition of other things” and “Now, the point, at the instant” (Real Academia
de la Lengua Española, vigésima segunda edición).
106
“On the imposition of private initiative, said of the spontaneous action or interference of the
judge in the process, without request or petition, or initiative of the judge without request of a party.”
Cf. Couture, Eduardo J., Legal Dictionary. Spanish and latin, with translation into french, italian,
portuguese, english, and german. 4th ed., corrected, updated and broadened by Ángel Landoni Sosa,
Montevideo, Julio César Faira-Editor, 2010, p. 534.
107
Para. 4 of the concurring opinion formulated in the Case of Gomes Lund et al. (“GUERRILHA DO
ARAGUAIA”) V. Brazil, supra note 4.
108
Case of Radilla Pacheco v. United Mexican States, supra note 19, para. 275.
109
Para. 198 of the Judgment of Case of Cabrera García and Montiel Flores v. Mexico, to which this
concurring opinion pertains, supra note 1.
110
In this regard, the standard notes: “Article 13. (…)the military jurisdiction subsists for crimes
against and violations of military discipline, but the military tribunals in any case and for any reason,
may not extend its jurisdiction over persons outside the army. When a crime or lack of military law
involves a civilian, the the competent civil authority shall know the case.”
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