84
297. The Court points out that, as previously stated in this judgment (supra paras. 247
and 275), the victim’s participation in criminal proceedings is not limited to the mere
reparation of the damage but, mainly, to making effective their rights to know the truth and
to a fair trial before competent courts. The aforementioned necessarily implies that, at a
domestic level, there shall be adequate and effective recourses through which the victim
has the possibility to contest the jurisdiction of the judicial authorities that will eventually
exercise their jurisdiction over matters regarding which they consider they do not have
competence.
298. Therefore, in the present case the appeal of relief was not effective in allowing Mrs.
Tita Radilla Martínez to contest the hearing of the arrest and subsequent forced
disappearance of her father, Mr. Rosendo Radilla-Pacheco, by the military jurisdiction, which
constitutes a violation of Article 25(1) of the Convention.
B3. Military justice in the Inter-American Convention on Forced Disappearance
299. The representatives argued that the application of military jurisdiction in this case
also constitutes a violation of Article IX of the CIDFP.
300. It has already been established in this Judgment that there is no doubt that acts
such as the forced disappearance of Mr. Rosendo Radilla-Pacheco are not related in any
way whatsoever with military discipline and, therefore, they are excluded of the
competence of military jurisdiction (supra para. 277). As has already been stated (supra
paras. 272 and 273), the military criminal jurisdiction shall be directed toward protecting
special juridical interests, related to the tasks the law assigns to military forces.
Establishing the contrary, would threaten the principle of the competent tribunal,292 in light
of Article 8(1) of the American Convention. This is what is sought by Article IX of the
CIDFP.
301. The Court observes that Mexico made a reservation to the mentioned Article IX of
the CIDFP, according to which it stated that its domestic legal system acknowledges “the
jurisdiction of war, when the soldier has committed any crime while in service.” (infra para.
306) The representatives requested that the Tribunal declare the “nullity” of the reservation
made by the State, because it “[c]ontested the objective and purpose of the treaty and
[because it was] contrary to the jurisprudence of the international organizations in charge of
the protection of human rights throughout the hemisphere […].” They argued that “[t]he
reason of being [of this] Article […] is to protect the victims of forced disappearances from
their aggressors –that according to the systematic practice in the countries of Latin
America- […] has been carried out by members of the Army. Therefore, the presentation of
a reservation that allows the prosecution of soldiers that commit the crime of forced
disappearance of persons by the military jurisdiction, is a reservation that should be
declared null […].” The Commission did not present arguments in this regard. The State on
its part questioned the Court’s jurisdiction to issue a ruling with regard to the reservation
made (supra para. 33).
302. Regarding the power to make reservations, Article XIX of the CIDPF indicates that
“[t]he states may express reservations with respect to [this] Convention when adopting,
signing, ratifying or acceding to it, unless such reservations are incompatible with the object
and purpose of the Convention and as long as they refer to one or more specific provisions.”
292
Cf. Case of Cantoral Benavidez v. Peru, supra note 274, para. 113; Case of Escué Zapata v. Colombia,
supra note 56, para. 105, and Case of Tiu Tojín v. Guatemala, supra note 24, para. 118.
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