61
Mexico itself indicated during the public hearing of the case (supra para. 9) that “[u]p to
now, after multiple efforts that can be found in the case file, […] it has not been able to
completely elucidate how the facts occurred.”
203. Upon analyzing the effectiveness of the investigations carried out in the present case,
the Court has not failed to notice that from the context in which the disappearance of Mr.
Radilla-Pacheco is enclosed (supra paras. 132 through 137) the probable existence of
different degrees of responsibility in facts such as the present can be concluded. During the
public hearing, making general reference to the period in which the facts occurred, the State
mentioned that “[t]he government was an entity centralized in the presidential figure where
there was not an exogenous or endogenous counterweight to limit said power, in which
verticality also regulated the inside, and there was no institutional framework that could
submit governmental instances to an accountability process.”
204.
In this sense, the Historical Report of the Special Prosecutors’ Office establishes that:
“[i]t has been verified that the authoritarian regimen, at the highest levels of command,
prevented, criminalized, and fought against different sectors of the population that had organized
themselves to demand a greater democratic participation in the decisions that affected them, and
of those who wanted to put a stop to authoritarianism, patrimonialism, and the structures of
mediation, and oppression. The fight undertaken by the authoritarian regimen against these
national groups […] went beyond the legal framework and incurred in crimes against humanity
and violations to International Humanitarian Law [sic], which culminated in massacres, forced
disappearances, systematic torture, and genocide […] The State’s institutions were used to this
206
effect, thus perverting them.”
205. In this regard, the Tribunal observes that during a period of approximately 5 years,
that is, from May 11, 2002, date on which the Special Prosecutors’ Office started the
investigations corresponding to the present case (supra para. 187), up until February 15,
2007, date on which the General Investigation Coordination settled the preliminary inquiry in
which the facts of the present case are being investigated (supra para. 189), only one
person was brought before the judicial authority as probable responsible of the commission
of the crime of illegal deprivation of freedom in its modality of plagiarism and kidnapping
against Mr. Radilla-Pacheco207 (supra para. 188). The Court points out that the State did not
refer to other specific diligences related to the probable responsibility of other people. In that
sense, the representatives indicated that, “[t]hey had found […] important historical
evidence that incriminate several high commands of the Armed Forces. However, the
[Special Prosecutors’ Office] only summoned 3 members of the Armed Forces [that] were
already imprisoned for other crimes to testify, and […] ignored following-up on other lines of
investigation.” The State did not object this matter.
206. As has been established on other opportunities, the Court considers that the
authorities in charge of the investigations had the duty to guarantee that throughout the
course of the same the systematic patters that permitted the commission of grave violations
of human rights in the present case would be assessed.208 In seeking to guarantee its
effectiveness, the investigation should have been carried out taking into account the
206
Cf. Historical Report to the Mexican Society, Special Prosecutors’ Office for Social and Political Movements
of the past, Attorney General of the Republic, 2006 (dossier of appendixes to the application, appendix 4, page 6).
207
Cf. Testimony offered by the Attorney Martha Patricia Valadez Sanabria before notary public (affidavit) on
June 18, 2009 (dossier of merits, volume IV, folio 1430).
208
Cf. Case of the Massacre of la Rochela v. Colombia, supra note 83, para. 156; Case of Tiu Tojín v.
Guatemala, supra note 24, para. 78, and Case of Anzualdo Castro v. Peru, supra note 44, para 154.
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