74
carried out during the preliminary investigation in criminal proceedings,260 in order to
guarantee the effectiveness of the administration of justice, in no case can the reservation
be invoked to prevent the victim from accessing the dossier of a criminal process. The
State’s power to avoid the spreading of the content of the proceedings, if this were the case,
shall be guaranteed adopting the necessary measures compatible with the exercise of the
victims’ procedural rights.
253. In that sense, on one hand, it is evident for this Tribunal that upon denying Mrs. Tita
Radilla-Pacheco, in her condition of injured party, access to the dossier of criminal case
46/2005 processed before the Second District Court in the State of Guerrero, the State failed
to comply with its obligation to respect her right to intervene in the process.
254. Regarding the issuance of copies of the case file of the preliminary inquiry carried out
by the Attorney General of the Republic in this case, the Court warns that the requests
made in this sense have been declared inadmissible by that institution, based on Article 16,
second paragraph, of the Federal Code of Criminal Proceedings.261
255. Regarding this matter, the State indicated that “[i]t has guaranteed full access of the
collaborator Tita Radilla Martínez, either personally or through her legal representatives, to
the case file that is currently included as the investigation of the facts.” However, in the
processing before this Tribunal, it has repeated the legal impossibility that falls upon the
Public Prosecutors’ Office to issue copies of ongoing preliminary inquiries (supra para. 88),
reason for which there is no controversy regarding these facts.
256. The Court considers that, in cases such as the present, the denial to issue copies of
the investigation to the victims constitutes a disproportionate burden in their detriment, not
compatible with their right to participate in the preliminary inquiry. In the case before us,
this was translated into a violation of Mrs. Tita Radilla Martinez’s right to fully participate in
the investigation. In this sense, the States shall have mechanisms that are less damaging to
the right to a fair trial while protecting the diffusion of the content of the ongoing
investigation and the integrity of the case files.
257. In any case, the Tribunal points out that the Federal Law on Transparency and Access
to Public Governmental Information in force in Mexico, in its Article 14, fraction III,
effectively states that “preliminary inquiries” will be considered reserved information.” 262
However, in that same provision, said Law also stats that “[t]he nature of the reservation
260
Cf. Case of Barreto Leiva v. Venezuela. Merits, Reparations, and Costs. Judgment of November 17, 2009.
Series C No. 206, paras. 54 and 55.
261
Cf.
Agreement issued by the Attorney General of the Republic in attention to the petition made by
Mrs. Tita Radilla Martínez requesting a single copy of preliminary inquiry number PGR/FEMOSPP/033/2002 (dossier
of appendixes to the brief of pleadings and motions, appendix D(30), folio 1954). The Court warns that Article 16,
second paragraph, of the Federal Court of Criminal Proceedings states that “Only the defendant, his defense counsel
and the victim or injured party and/or his legal representative, if any, may have access to the actions of a
preliminary inquiry. Any public employee that violates the reservation of the information of the preliminary inquiry
or provides a copy of the documents included in it, will be subject to the corresponding proceeding to determine
their administrative or criminal responsibility.” Cf. (dossier of appendixes to the respondent’s plea, appendix III(4),
page 5).
262
Published in the Official Gazette of the Federation on June 11, 2002, Text in Force
(http://www.diputados.gob.mx/LeyesBiblio/pdf/244.pdf). In its Article 13, fraction V, it states that “Reserved
information will be understood as the one whose diffusion may: […] Cause a serious damage to the activities of
verification of compliance with the laws, prevention or prosecution of crimes, the serving of justice, the collection of
contributions, immigration control operations, procedural strategies in legal or administrative proceedings as long as
the resolutions do not become enforceable.”
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