judgment, and in those related to the Cases of Fernández Ortega, Rosendo Cantú,
Montiel and Cabrera García and Flores, the Mexican judges (as organs of the
Mexican State) have “direct” obligations that must be fulfilled "immediately" and
"ex officio", as discussed below.
73.
It should not be overlooked that the judgments delivered against the
Mexican State emphasize that standards must be “interpreted” bearing in mind the
objective pursued by Article 2 of the American Convention on Human Rights,
namely, to “give effect” to the rights and freedoms enshrined in that instrument.
This conventional provision establishes that “the States Parties undertake to adopt,
in accordance with their constitutional processes and the provisions of this
Convention, such legislative or other measures as may be necessary to give effect
to those rights or freedoms.” Thus, the phrase “or other measures" also includes
“constitutional interpretations” that allow for rights to be applied with greater
effectiveness and scope, in terms of the pro homine principle enshrined in Article
29 of the Pact of San Jose. This could lead to considerations to supersede the
jurisprudential criteria established by the Plenary of the Supreme Court of Justice.
74.
A Mexican Court considered that the pro homine principle is of “obligatory
application,” because it is contemplated in international treaties that form part of
the Supreme Law of the Union, under the terms of Article 133 of the Federal
Constitution. This was established by the Fourth Collegiate Court on Administrative
Matters of the First Circuit when it ruled in the direct amparo 202/2004, on October
20, 2004, producing thesis I.4º.A.464 A, with the following title and text: 101
PRO HOMINE PRINCIPLE: ITS APPLICATION IS OBLIGATORY.
The pro homine principle, which means that the legal interpretation should
always seek the greatest benefit for the individual, that is, it should apply
the most comprehensive standard or the broadest interpretation when
addressing protected rights and, on the contrary, apply the most restricted
standard or narrowest interpretation when an attempt is made to limit its
exercise, is contemplated in Article 29 of the American Convention on
Human Rights and Article 5 of the International Covenant on Civil and
Political Rights, published in the Official Gazette of the Federation on May 7
and 20, 1981, respectively. However, since these treaties form part of the
Supreme Law of the Union under Article 133 of the Constitution, it is clear
that this principle must be applied on a mandatory basis. (Emphasis added).
75.
The “constitutional” and “legal” interpretations made by judges
and organs that impart justice in Mexico at all levels, must be based not only
on the international instruments to which the State of Mexico is a party, but
also on the jurisprudence of the Inter-American Court. This is because it is
the court of the Inter-American System for the Protection of Human Rights at
the international level, whose jurisdiction is the application and interpretation
of the American Convention. This body actually determines the content of the
text of the Convention, in such a way that the interpreted provision acquires
direct effectiveness in Mexico, since this State has signed the Convention and
has accepted the jurisdiction of the Inter-American Court. As established in
the Judgment in the Case of Cabrera García and Montiel Flores, which has
prompted this Concurring Opinion (and which applies to the other three cases
mentioned):
101
Published in Semanario Judicial de la Federación y su Gaceta, Ninth Period, TCC, Tome XXI,
February 2005, p. 1744.
27
اختر الفقرة المستهدفة3
الاتصال بفقرة
Connect to an entity
Disable highlights
أضف إلى جدول المحتويات