26
Tribunal states that some of the documents presented by the representatives are not linked
to the information requested by the judges.57 Likewise, one of the documents does not
indicate the name of the author or the sources of information contained therein, thus the
Tribunal cannot assess it correctly.58 Therefore, in application of Article 47(1) of the Rules of
Procedure, only the documents related with the information required by the judges are
included into the body of evidence of the present case.59 Their content will be assessed in
the measure in which it is useful for the elucidation of the questions made during the
mentioned public hearing.
88.
On the other hand, the Tribunal points out that the President requested that the
State forward a copy of Preliminary Inquiry SIEDF/CGI/454/07, regarding the alleged forced
disappearance of Mr. Rosendo Radilla-Pacheco, for its inclusion in the body of evidence of
the present case (supra para. 10). However, the State did not present said copy. Int his
regard, the State mentioned that “if the […] Court were to forward the mentioned
preliminary inquiry to the Inter-American Commission […] and to the petitioners, the correct
development of the obtainment of justice enshrined in Articles 21 and 102 of the Political
Constitution of the United States of Mexico, pursuant to which the prosecution and research
of the crimes committed within its territory is the exclusive power of the State of Mexico,
would be affected.” Additionally, the State mentioned that “[t]he evidentiary elements
presented up to this moment by the parties in controversy are evidently sufficient for the
resolution of the case.” Therefore, it requested that the Tribunal “[p]roceed to the resolution
of the case with the ample evidentiary elements that have been filed throughout the
processing of the case.”
89.
As it has done on previous occasions,60 the Court considers it appropriate to point
out that the reservation of information from people outside the process in the preparation
stage of criminal investigations is established in different domestic legislations. In this case,
the accused State has mentioned the aforementioned as grounds to not send to the Court
the documents requested with regard to the domestic criminal proceedings referring to the
alleged forced disappearance of Mr. Rosendo Radilla-Pacheco. The restriction mentioned
could result justifiable in the domestic proceedings, since the diffusion of certain contents
during a preliminary stage of the investigations could obstruct them or cause damages to
the people. However, for the effects of the international jurisdiction of this Tribunal, it is the
State who has control of the means for the clarification of the facts occurred within its
territory and, therefore, its defense cannot fall upon the impossibility of the defendant to
57
Those documents are: appendixes A.1. Legislative Initiatives. Related to the Military Jurisdiction;
appendixes A.2. Legislative Initiatives. Related to National Security; appendixes B. Doctrine; appendixes C:
Reports; appendixes D: Newspaper articles, and Appendix E.2: Other documents. Recommendations issued by the
CNDH to Sedena “in Calderón’s six-year period” (dossier of appendixes to the final arguments of the
representatives, folios 2763 through 3098 and 3112 through 3115).
58
Said document corresponds to appendix E.4: Summaries of actual cases of violations by soldiers against
civilians (dossier of appendixes to the final arguments of the representatives, folios 3119 through 3137).
59
Those documents correspond to: appendix E.1: Other documents. Requests for information on Military
justice - folios 700175808, 700176008, 700176108, 700176308, 700176408, 700176508, 700176608,
700176808, 700176908, 700177008, 700177108, and, 700177308-; appendix E.3: Order of January 12, 2009,
upon request of information recorded under folio 700002709, through the System of Federal Governmental Public
Information, National Defense Secretariat. Laisson Unit, Access to Information. Official Letter No. AI/0117 (dossier
of appendixes to the final arguments of the representatives, folios 3100 through 3111 and 3116 through 3118).
60
Cf. Case of Ríos et al. v. Venezuela. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
January 28, 2009. Series C No. 194, para. 98 and Case of González et al. v. Mexico. Request of Expansion of the
Alleged Victims and Refusal to Forward Documentary Evidence. Order of the Inter-American Court of Human Rights
of January 19, 2009, considering clause number fifty-nine.