54
is a wide-ranging and imprecise provision that prevents determination of the exact connection
between a crime that falls under the ordinary jurisdiction and military service objectively
assessed. The possibility that the military courts may try a soldier accused of an ordinary
crime, merely because he is on active service, implies that jurisdiction is awarded merely
because he is a soldier. Thus, even if the crime is committed by soldiers while they are still on
active service, or based on service-related acts, this is not enough for such crimes to be heard
by the military criminal justice system.218
163. In the case of Radilla Pacheco, this Court found that the provision contained in
said Article 57 functions as a rule and not as an exception, an indispensable
characteristic of the military jurisdiction in order for it to conform to the standards
established by this Court.219 The Court recalls that Article 2 of the American Convention
establishes the general obligation of each State Party to adapt its domestic law to the
Convention’s provisions in order to guarantee the rights that it establishes, which implies
that the measures under domestic law must be effective (the effet utile principle).220
Consequently, the Court finds that the State failed to comply with the obligation
contained in Article 2 of the American Convention, in connection with Articles 8 and 25
thereof, by extending the jurisdiction of the military justice system to crimes that have
no precise connection to the military discipline or to juridical rights inherent in the
military forum.
*
*
*
164. Lastly, regarding the alleged inexistence of an effective remedy to contest the
military competence, the Court has indicated that Article 25(1) of the Convention
establishes the obligation of the State Parties to ensure, to all those subject to its
jurisdiction, an effective judicial remedy for acts that violated their fundamental rights.221
165. Mrs. Rosendo Cantú filed a petition for amparo [relief] against the decision of the
Civil Public Prosecutor’s Office that confirmed the military justice system���s jurisdiction to
hear the case (supra para. 145). However, this petition was dismissed in first instance
(supra para. 145), because of the Act of the Common Public Prosecutor’s Office “since it
is not sufficient to affect the legal interest of the plaintiff in this forum, because it is not
a definitive Act, nor an order that directly associates so that the agent of the [Military]
Public Prosecutor’s Office, who was granted competence, takes a decision in this regard,”
and for this reason there was “cause of inability to execute the petition for amparo
[relief] which obligates the Court of Constitutional Control to not adjudicate the merits in
question.”222 Said order was confirmed using the same arguments.223 In addition, Mrs.
Rosendo Cantú presented an appeal regarding the jurisdiction of the Military Public
Prosecutor’s Office (supra para. 145) requesting it to abstain from hearing the case.224
218
Case of Radilla Pacheco, supra note 36, para. 286.
219
Cf. Case of Durand and Ugarte v. Perú. Merits. Judgment of August 16, 2000. Series C No. 68, para.
117; Case of the Rochela Massacre v. Colombia. Merits, Reparations, and Costs. Judgment of May 11, 2007.
Series C No. 163, para. 200, and Case of Radilla Pacheco, supra note 36, para. 287.
220
Cf. Case of Garrido and Baigorria v. Argentina. Reparations and Costs. Judgment of August 27, 1998.
Series C No. 39, para. 68; Case of the Dos Erres Massacre, supra note 27, para. 122, and Case of Chitay Nech
et al., supra note 25, para. 213
221
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections. Judgment of June 26, 1987.
Series C No. 1, para. 91; Case of Usón Ramírez, supra note 216, para. 128, and Case of Radilla Pacheco, supra
note 36, para. 291.
222
Cf. Order of the First District Judge of the state of Guerrero, supra note 166, folio 11285 and 11288.
223
Cf. Judgement of the Fifth Judge of District "B" on Criminal Matters in the Federal District, supra note
172, folios 12414 to 12438.
224
Cf. Brief of objection of jurisdiction of Mrs. Rosendo Cantú, supra note 169, folios 16762 to 16778.
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