252.
In the instant case, since the forced disappearance of persons has been assumed, it is
obvious that the protected interests have nothing to do with military justice. The Commission therefore
considers that the use of the military courts in this specific case violated the right to access to a competent,
independent, and impartial authority for the pursuit of justice.
253.
The IACHR deems it unnecessary to conduct a detailed examination of the omissions and
irregularities committed in the framework of the investigation conducted by the Attorney General's Office for
Military Justice. This is because the hearing of crimes involving human rights violations by military justice is
per se incompatible with the right of victims or their next of kin to be heard by a competent, independent, and
impartial court.296
254.
The Commission also observes that recourse to military justice in this specific case was due
to the normative framework in effect at the time the events occurred, specifically Article 13 of the
Constitution and Article 57 of the Code of Military Justice. The organs of the inter-American system have
already referred to the incompatibility between use of the military jurisdiction provided in that provision of
the Code of Military Justice and the obligations set out in the American Convention. In particular, in the Case
of Radilla Pacheco v. Mexico, the Inter-American Court said that:
Article 57, fraction II, subparagraph a) of the Code of Military Justice is an ample and
imprecise provision that prevents the determination of the strict connection of the crime of
the ordinary jurisdiction with the military jurisdiction objectively assessed. The possibility
that the military courts prosecute any soldier who is accused of an ordinary crime, for the
mere fact of being in service, implies that the jurisdiction is granted due to the mere
circumstance of being a soldier. In that sense, even when the crime is committed by soldiers
while they are still in service or based on acts of the same, this is not enough for their
knowledge to correspond to the military criminal justice.297
255.
Accordingly, the Court ordered the State to “adopt, within a reasonable period of time, the
appropriate legislative reforms in order to make the mentioned provision [Article 57] compatible with the
international standards of the field and of the Convention.”298 That order was reiterated in three subsequent
cases related to Mexico in which it was determined that military criminal jurisdiction had been used in a
manner inconsistent with the Convention, based on Article 57.II.a of the Code of Military Justice.299 In
compliance with that order, the Official Journal of June 13, 2014, published the reforms to that Code, which
establishes that human rights violations committed against civilians may not be heard by military justice.
256.
Inasmuch as the reforms had not yet been made at the time military justice considered the
case, the Commission considers that the State failed to comply with its obligation to adopt domestic legal
provisions in keeping with Article 2 of the Convention.
296 I/A Court H.R., Case of Osorio Rivera v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of November
26, 2013. Series C No. 274, para. 188; IACHR, Application to the Inter-American Court of Human Rights in the case of Valentina Rosendo
Cantú
et
al.
against
the
United
Mexican
States,
August
2,
2009,
para.
126,
available
at
www.cidh.oas.org/demandas/demandasENG2009.htm. IACHR, Report No. 53/01, Case 11.565, Merits, Ana, Beatriz and Celia González
Pérez, Mexico, April 4, 2001, para. 81, available at http://cidh.org/annualrep/2000eng/ChapterIII/Merits/Mexico11.565.htm.
297 I/A Court H.R. Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of
November 23, 2009. Series C No. 209, para. 286.
298 I/A Court H.R. Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of
November 23, 2009. Series C No. 209, operative paragraph 10 and paras. 337-342.
299 I/A Court H.R. Case of Fernández Ortega et al. v. Mexico, Preliminary Objection, Merits, Reparations and Costs. Judgment of
August 30, 2010. Series C No. 215, paras. 178 and 179; and Case of Rosendo Cantú et al. v. Mexico, Preliminary Objection, Merits,
Reparations and Costs. Judgment of August 31, 2010. Series C No. 216, paras. 162 and 163. Case of Cabrera García and Montiel Flores v.
Mexico. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 26, 2010. Series C No. 220, operative paragraph 15
and para. 234.