53
law and, a fortiori, to due process,” which, in turn, is closely related to access to justice. The
judge in charge of hearing a case shall be competent, as well as independent, and
impartial.213
In situations that violate the human rights of civilians, the military jurisdiction may not
operate under any circumstance.214
The Court has emphasized that when the military courts hear cases involving acts that
constitute violations of the human rights of civilians, they exercise jurisdiction not only with
regard to the accused, who must necessarily be someone on active military duty, but also
with regard to the civilian victim, who has the right to participate in the criminal proceedings
not only for the effects of the corresponding reparation of the damage but also to exercise
his or her rights to the truth and to justice […]. In this regard, the victims of human right
violations and their next of kin have the right to these violations being heard and decided by
a competent tribunal, pursuant to due process and access to justice. The importance of the
passive subject transcends the military sphere, because juridical rights that belong to the
ordinary forum are involved.215
161. In no case does the rape of someone by military personnel bear a relationship to
the military discipline or mission. To the contrary, the offense committed by military
personnel against Mrs. Rosendo Cantú affected juridical rights protected by domestic law
and the American Convention, such as the victim’s personal integrity and dignity. It is
evident that such conduct is openly contrary to the obligations to respect and to protect
human rights, and consequently, is excluded from the competence of the military
jurisdiction. Based on the foregoing, the Court concludes that the intervention of the
military justice system in the preliminary investigation of the rape was contrary to the
parameters concerning the exceptional and restrictive nature of that system and
involved the application of the military jurisdiction that functioned without taking into
account the nature of the acts involved. This conclusion is valid in the present case, even
though the incident is only at the investigation stage by the Military Public Prosecutor’s
Office. As revealed by the criteria indicated above, the incompatibility of the American
Convention with the intervention of the military justice system in this type of case does
not refer merely to the act of prosecution, which is the responsibility of a court, but
essentially to the investigation itself, because this procedure constitutes the beginning
and the necessary grounds for the subsequent intervention of an incompetent court.
Based on the above, the Court finds that the State violated the rights to judicial
guarantees and to judicial protection established in Articles 8(1) and 25(1) of the
American Convention, in relation to Article 1(1) thereof, to the detriment of Mrs.
Rosendo Cantú. As in previous cases216 when it has found that the military criminal
jurisdiction is not competent, the Court considers that it is not necessary to rule on the
other arguments concerning the independence and impartiality of the military justice
system or the possible violation, based on the same facts, under other Inter-American
instruments.
*
*
*
162. Moreover, the Court observes that the intervention of the military justice system
was based on Article 57(ii)(a) of the Code of Military Justice217 (supra para. 144). In this
regard, the Court reiterates that this provision:
213
Case of Radilla Pacheco, supra note 36, para. 273.
214
Case of Radilla Pacheco, supra note 36, para. 274.
215
Case of Radilla Pacheco, supra note 36, para. 275.
216
Cf. Case of Cantoral Benavides, supra note 125, para. 115, and Case of Usón Ramírez v. Venezuela.
Preliminary Objection, Merits, Reparations, and Costs. Judgment of November 20, 2009. Series C No. 207,
para. 124.
217
Article 57(II)(a) of the Code of Military Justice, in what is relevant, states:
The following are crimes against military order:
II.- Those of the common or federal jurisdiction, when the commission has involved any of the circumstances
hereby stated:
a) when committed by military personnel while on duty or as a result of acts of the same[.]
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