233. Therefore, as was established in the cases of Radilla Pacheco,
Fernández Ortega and Rosendo Cantú, it is necessary that the constitutional
and legislative interpretations concerning the criteria for the material and
personal jurisdiction of the military courts in Mexico be adapted to the
principles established in the case law of this Court, which have been
reiterated in the present case 102 and which apply to all human rights
violations allegedly committed by members of the armed forces. This means
that, regardless of any legislative reforms that the State should adopt in this
case, based on the conventionality control, the judicial authorities must rule
immediately and ex officio that the facts be heard by a natural judge, that
is, by the ordinary criminal courts. 103 (Underlining added).
76.
In using the expressions “immediately” 104 and “ex officio,” 105 the intention of
the Inter-American Court is to ensure “direct” action by all Mexican judges to
exercise “diffuse conventionality control” without the need for prior statements by
any organ of the Mexican State and regardless of whether the parties requested it.
On this matter the view of ad hoc Judge Roberto de Figueriedo Caldas is
important: 106
5. For all States of the American Continent, which have willingly adopted it,
the Convention is the equivalent of a supranational Constitution pertaining
to Human Rights. All public institutions and national spheres, as well as the
respective Federal, state and municipal legislatures of all adherent States
are under obligation to respect and comply with it. (Underlining added).
77.
Mexican judges must, on the one hand, conduct constitutional and legal
interpretations that allow “the victims of human rights violations and their families
to have the right to have those violations heard and addressed by a competent
Court, according to due process of law and the right to a fair trial. The importance
of the passive subject transcends the military sphere of action, since juridical rights
associated with the ordinary regimen are involved”; 107 consequently, “this
conclusion applies not only to cases of torture, forced disappearance and rape, but
to all human rights violations" 108 (Underlining added). Thus, the obligation of the
102
Cf. Case of Radilla Pacheco v. United Mexican States, supra note 19, para. 340; Case of
Fernández Ortega et al. v. Mexico, supra note 21, para. 237, and Case of Rosendo Cantú et al. v.
Mexico, supra note 22, para. 220.
103
Cf. Case of Fernández Ortega et al. v. Mexico, supra note 21, para. 237, and Case of Rosendo
Cantú et al. v. Mexico, supra note 22, para. 220.
104
“Without the interposition of other things” and “Now, forthwith, instantly” (Real Academia de la
Lengua Española, 22nd edition).
105
“As an imposition on private initiative, this refers to the spontaneous action or intervention by
the judge in the process, without the need for a request or petition, or on the initiative of the judge
without the request of a party.” Cf. Couture, Eduardo J., Legal Dictionary. Spanish and Latin, with
translation into French, Italian, Portuguese, English, and German. 4th ed., corrected, updated and
broadened by Ángel Landoni Sosa, Montevideo, Julio César Faira-Editor, 2010, p. 534.
106
Para. 4 of the Concurring Opinion issued in the Case of Gomes Lund et al. (“GUERRILHA DO
ARAGUAIA”) V. Brazil, supra note 4.
107
Case of Radilla Pacheco v. United Mexican States, supra note 19, para. 275.
108
Para. 198 of the Judgment of Case of Cabrera García and Montiel Flores v. Mexico, to which this
Concurring Opinion refers, supra note 1.
28
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