39
Furthermore, if violations of human rights are not seriously investigated, they would be, in a sense,
aided by law enforcement which would compromise the international responsibility of the State.
162.
Thus, as evidenced in the present case in which deaths and serious injuries occurred as
a result of the excessive use of force, contrary to its international obligations 177 the State has not carried
out a serious, independent, impartial and effective investigation, it has not provided a satisfactory and
compelling explanation of the facts, and it has not provided evidence to discredit the allegations regarding
its responsibility. On the contrary, the IACHR notes that the State remitted the case to the military
jurisdiction where the relatives of the victims executed were denied access, where the majority of the
survivors were not asked to provide testimony, and where the military personnel involved were acquitted
and the offenses remain unpunished.
163.
Based on the preceding, the Commission considers that in the instant case, the
Dominican State exceeded the scope of military jurisdiction in violation of the parameters of a special and
restricted jurisdiction that characterize military criminal jurisdiction and extended the competence of the
military courts to offenses that bear no direct relation to military discipline or to the legal rights of the
military forces; it set free the military servicemen involved in the incidents and prevented the relatives of
the victims from having access to justice. Therefore, the Commission concludes that the Dominican
Republic violated the rights enshrined in Articles 8.1 and 25 of the American Convention in connection to
Article 1(1) of the same instrument, to the detriment of the relatives of the victims executed who are
identified in paragraph 103.
3.
Failure to comply with the obligation to adopt domestic remedies (Article 2 of the
American Convention), in connection to Articles 8 and 25 of the same instrument.
164.
Article 2 of the American Convention establishes the general obligation of each State
Party to adopt the necessary domestic legislative or other measures in accordance with the provisions of
the Convention in order to guarantee the rights recognized by it, which implies that the domestic remedies
178
must be effective (principle of effet utile) .
165.
The Commission considers that Article 3 of the Armed Forces Code of Justice, which in
relevant part establishes that “military courts are competent to hear offenses committed by military
personnel in the exercise of their duties, regardless of where the offenses were committed” operates as a
179
rule rather than an exception, of military jurisdiction. . Furthermore, the IACHR observes that the
content of that article is broad and prevents the determination of the link between offenses in the civil
jurisdiction and those in the military jurisdiction. The Commission specifically emphasizes the section of
the article that establishes that all “other crimes, offenses or violations committed by military or attached
personnel shall be tried in ordinary courts, in accordance with the provisions of the Code of Criminal
Procedure, the Criminal Code, and general criminal laws.”
166.
In that regard, the Inter-American Court has established that:
177
IA Court H.R., Case Zambrano Vélez et al vs. Ecuador. Merits, Reparations and Costs. Judgment of July 4, 2007.
Series C No. 166. Par. 108 and 88; IA Court H.R. Case Montero Aranguren et al (Retén de Catia), Judgment of July 5, 2006. Series
C No. 150. Par. 80; IA Court H.R. Case Baldeón García. Judgment of April 6, 2006. Series C No. 147. Par. 120. IA Court H.R., Case
Servellón García et al vs. Honduras. Judgment of September 21, 2006. Series C No. 152, par. 123; IA Court HR,Case Baldeón
García vs. Peru. Judgment of April 6, 2006. Series C No. 147, par. 91; IA Court H.R., Case of the Pueblo Bello Massacre vs.
Colombia. Judgment of January 31, 2006. Series C No. 140, par. 145; IA Court H.R. Case of the “Mapiripán Massacre” vs.
Colombia. Judgment of September 15, 2005. Series C No. 134, pars. 137 and 232. IA Court H.R., Case Juan Humberto Sánchez
vs. Honduras. Judgment of June 7, 2003. Series C No. 99, par. 112. Also see Case of the Miguel Castro Castro Prison vs. Peru.
Judgment of November 25, 2006. Series C No. 160, par. 256, and IA Court H.R., Case Vargas Areco vs. Paraguay. Judgment of
September 26, 2006. Series C No. 155, par. 77. In similar sense see also ECHR, Erdogan and Others v. Turkey, supra note 66,
pars. 122-123, and ECHR, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98 paragraphs 111-112, 6 July 2005.
178
IA Court H.R., Case Radilla Pacheco vs. Mexico. Judgment of Preliminary Exceptions, merits, reparations and costs.
November 23, 2009, par. 288, Case Garrido and Baigorria vs. Argentina, supra note 283, par. 68; Case Zambrano Vélez et al vs.
Ecuador, supra note 51, par. 55, and Case Heliodoro Portugal Vs. Panamá, supra note 24, par. 179.
179
IA Court H.R., Case Radilla Pacheco vs. Mexico. Judgment of preliminary exceptions, merits, reparations and costs.
November 23, 2009, Case Las Palmeras vs. Colombia, supra note 274, par. 51; Case La Cantuta vs. Peru, supra note 51, par. 142,
and Case of the la Rochela Massacre vs. Colombia, supra note 83, par. 200.