95
creation. In other words, the Judiciary shall exercise a “control of conventionality” ex officio
between domestic regulations and the American Convention, evidently within the
framework of its respective competences and the corresponding procedural regulations.
Within this task, the Judiciary shall take into consideration not only the treaty but also the
interpretation the Inter-American Court, final interpreter of the American Convention, has
made of it.321
340. Therefore, it is necessary that the constitutional and legislative interpretations
regarding the material and personal competence criteria of military jurisdiction in Mexico be
adjusted to the principles established in the jurisprudence of this Tribunal, which have been
reiterated in the present case (supra paras. 272 through 277).
341. As per this understanding, this Tribunal considers that it is not necessary to order
the modification of the regulatory content included in Article 13 of the Political Constitution
of the United Mexican States.
342. Despite the aforementioned, the Court stated in Chapter IX of the present Judgment
that Article 57 of the Military Criminal Code is incompatible with the American Convention
(supra paras. 287 and 289). Therefore, the State shall adopt, within a reasonable period of
time, the appropriate legislative reforms in order to make the mentioned provision
compatible with the international standards of the field and of the Convention, pursuant
with paragraphs 272 through 277 of this Judgment.
ii)
Adequate definition of the crime of forced disappearance of persons: reforms to Article
215-A of the Federal Criminal Code pursuant with international instruments
343. The representatives requested that the Court order that the State “[e]xecute the
legislative measures necessary to specifically adjust its domestic legal framework to its
international commitments within the Inter-American realm of human rights.” The
Commission did not file any claim in this regard. On its part, the State mentioned that the
State of Mexico “[i]s promoting a bill on forced disappearance of persons that will correct any
deficiency in the harmonization of Mexican legislation with international standards in this
regard.”
344. In the present Judgment the Court established Article 215 A of the Federal Criminal
Code, which punishes the crime of forced disappearance of persons, does nt fully and
effectively adjust to international regulations in force in this subject (supra para. 324).
Therefore, the State shall adopt all the measures necessary to make that legal classification
compatible with the international standards, paying special attention to that stated in Article
II of the CIDFP, pursuant with the criteria previously established in paragraphs 320 through
324 of the present judgment. This obligation is binding for al the state’s powers and bodies
as a whole. In that sense, the State shall not limit its actions to “promoting” the
321
Cf. Case of Almonacid Arellano et al. v. Chile, supra note 19, para. 124; Case of La Cantuta v. Peru, supra
note 51, para. 173, and Case of Boyce et al. v. Barbados. Preliminary Objection, Merits, Reparations, and Costs.
Judgment of November 20, 2007. Series C No. 169, para. 78. The Tribunal observes that the conventionality
control has already been exercised in the domestic judicial realm in Mexico. Cf. Direct Administrative Appeal of
Relief 1060/2008, First Collegiate Court in Administrative and Labor Matters of the Eleventh Circuit, judgment of
July 2, 2009. That decision established that: “the local courts of the State of Mexico shall not limit themselves to
the mere application of local laws but they are also compelled to apply the Constitution, international treaties or
conventions, and the jurisprudence issued by the Inter-American Court of Human Rights, among other bodies,
which forces them to exercise a control of conventionality among domestic regulations and supranational ones, as
was considered by the First Chamber of the Supreme Court of Justice of the Nation […].”
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