33
114. The Commission and the representatives argued different violations to the American
Convention as a result of the alleged forced disappearance of Mr. Rosendo Radilla-Pacheco,
which, according to that indicated, happened within a specific context.
115. In this sense, the Court considers it convenient to state that in its response to the
application, the State of Mexico argued that given the fact that it acknowledged the
contentious jurisdiction of the “[I]nter-American Court on December 16, 1998, this is 24
years after the occurrence of the facts analyzed in case 12,511[, the] Court [is prevented
from] hearing the social, political, or economic circumstances that surrounded the facts of
the case, when they occurred in 1974.” Likewise, it indicated that the claim through which
the Court is asked to hear of the context of this case “is inadmissible based on reasons
derived from the nature itself of the Inter-American human rights protection system.” In
that sense, it indicated that “[t]he facts referred to by the petitioners in a partial manner,
shall not be taken into consideration since they have not been the object of treatment
before the system of individual petitions […].”
116. In this sense, this Tribunal considers it necessary to reiterate that, pursuant with its
jurisprudence, the principle of non-retroactivity and the optional clause of acknowledgement
of this Court’s contentious jurisdiction does not imply that an act that occurred prior to the
same shall be excluded of all consideration when it can be relevant for the determination of
what occurred.82 In this sense, the Court observes that in order to decide the different cases
submitted to its knowledge it has had to take into account the context, since the political and
historical surroundings are determining factors in the determination of the juridical
consequences in the case, including both the nature of the violations to the Convention and the
81
Article I of the Inter-American Convention establishes that:
The States Parties to this Convention undertake:
a) Not to practice, permit, or tolerate the forced disappearance of persons, even in states of
emergency or suspension of individual guarantees;
b) To punish within their jurisdictions, those persons who commit or attempt to commit the crime
of forced disappearance of persons and their accomplices and accessories;
c) To cooperate with one another in helping to prevent, punish, and eliminate the forced
disappearance of persons; and
d) To take legislative, administrative, judicial, and any other measures necessary to comply with
the commitments undertaken in the […] Convention.
Article II of the same states that:
“for the purposes of the […] Convention, forced disappearance is considered to be the act of depriving a
person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by
persons or groups of persons acting with the authorization, support, or acquiescence of the state,
followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give
information on the whereabouts of that person, thereby impeding his or her recourse to the applicable
legal remedies and procedural guarantees.”
Likewise, Article XI establishes that:
Every person deprived of liberty shall be held in an officially recognized place of detention and be
brought before a competent judicial authority without delay, in accordance with applicable
domestic law.
The States Parties shall establish and maintain official up-to-date registries of their detainees and,
in accordance with their domestic law, shall make them available to relatives, judges, attorneys,
any other person having a legitimate interest, and other authorities.
82
Cf. Case of Almonacid Arellano et al. v. Chile, supra note 19, para. 82, and Case of the Serrano Cruz
Sisters v. El Salvador. Merits, Reparations, and Costs. Judgment of March 1, 2005. Series C No. 120, para. 27.
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