59
*
*
*
180. Lastly, regarding the alleged inexistence of an effective remedy to contest
the military competence, the Court has indicated that Article 25(1) of the
Convention establishes the obligation of the State Parties to ensure, to all those
subject to its jurisdiction, an effective judicial remedy for acts that violated their
fundamental rights.205
181. Mrs. Fernández Ortega filed a petition for amparo [relief] against the
decision of the Military Public Prosecutor’s Office adjoined to the 35th Military Zone
that confirmed the military justice system’s competence to hear the case.
However, this application was dismissed in first instance (supra para. 163),
because the contested facts “are not covered by Article 10 [of the Amparo Law],
since it is not sufficient that [the applicant] is the victim and that the contested
facts derive from a criminal case, for the aggrieved person to have a juridical right
to file an application for protection of his or her rights; additionally, one of the
exact hypotheses established in said Article 10 must exist.”206 This decision also
indicated, “if this constitutional […] mechanism is being used to obtain a
declaration of incompetence issued by the administrative authority of the common
forum against another authority of a different jurisdiction, such as the military
forum, the proceeding is indisputably inadmissible, owing to the absence of
legitimacy to file the constitutional action.”207 Lastly, it indicated that the
aggrieved party, or the person who has the right to remedy a harm, “is authorized
to file a petition for amparo [relief] only against decisions handed down in a
criminal case, […] when actions relate to the reparation of a harm; when the civil
responsibility arises from the perpetration of the offense, and when there are
actions that arise from the criminal case, relating immediately or directly to the
establishment of the purpose of the offense and the safeguard of the assets that
are allocated to the remedy or the civil responsibility.”208 This decision was
confirmed with the same arguments.209
182. Of the mentioned decisions, this Court concludes that Mrs. Fernández
Ortega was unable to contest the military jurisdiction’s competence to hear
matters that, by their nature, should correspond to the authorities of the ordinary
jurisdiction. In this regard, the Court has indicated that States have the obligation
to establish by law and ensure due application of effective remedies and
guarantees of due process before the competent authorities, in order to protect all
those subject to its jurisdiction against acts that violate their fundamental rights or
that lead to the determination of their rights and obligations.210 Hence, the Court
has established that, for the State to comply with the provisions of Article 25 of
the Convention, the formal existence of remedies is not sufficient; instead they
205
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections. Judgment of June 26,
1987. Series C No. 1, para. 91; Case of Usón Ramírez, supra note 200, para. 128, and Case of Radilla
Pacheco, supra note 33, para. 291.
206
Cf. Order of the First District Judge of the state of Guerrero, supra note 157, folio 9016.
207
Cf. Order of the First District Judge in the state of Guerrero, supra note 157, folios 9018 and
9019.
208
Cf. Order of the First District Judge in the state of Guerrero, supra note 157, folio 9022.
209
Cf. Judgment of the Second Collegiate Court of the Twenty-first Circuit of the state of Guerrero,
supra note 159 folios 8898 to 8969.
210
Cf. Case of the “Street Children” (Villagrán-Morales et al.). Merits, supra note 109, para. 79;
Case of Acevedo Buendía et al. v. Perú. Preliminary Objections, Merits, Reparations, and Costs.
Judgment of July 1, 2009 Series C No. 198, para. 72, and Case of Radilla Pacheco, supra note 33, para.
295.