The Commission held that the military jurisdiction “was not the competent authority to investigate the facts, given that the military courts should only be used when military criminal legal interests are endangered […].” It therefore considered that the allegation of torture “exceeds any action for the defense and security [of the State],” therefore “[it] cannot be considered [as a] service-related crime and [that] the investigation into these facts should have been conducted [in] the ordinary courts.” The representatives agreed with the Commission and added that "the amparo proceeding, which by definition is the mechanism for the legal guarantee of fundamental rights in Mexico, is ineffective to contest the scope of the military jurisdiction, since it establishes very limited legal assumptions when the victims or injured parties seek to resort to the courts.” The representatives further argued that the investigation of torture was not initiated ex officio by the judicial authorities who received the complaint of the alleged facts.
The State pointed out that this case “is no way related to the military justice system in Mexico,” since “the alleged use of torture was assessed and determined by independent and impartial Courts belonging to the Judicial Branch of the Mexican State, thereby remedying any violation […], which could be implied by an investigation conducted by a military authority.” It also explained that even though "the proceedings conducted by the Military Attorney General […] concluded that no torture was committed, they were not taken into account by the Judiciary when issuing its respective rulings.” Furthermore, the State indicated that “the defense […] had at its disposal and made full use of different simple and prompt remedies, which legally enabled it to bring before the competent judicial instances the alleged acts of torture.” It emphasized that “[s]aid remedies were effective for the defense inasmuch as, at first, […] the Collegiate Court ordered the legal assessment of an expert opinion that could have demonstrated the innocence of the […] victims [and], secondly, the Single-Magistrate Court acquitted Mr. Rodolfo Montiel of committing a crime against health and consequently, reduced his sentence.”
The investigation promoted by the victims into the allegations of torture committed against them was conducted by military authorities, since Article 57(II)(a) of the Military Justice Code establishes that the crimes against military discipline are those that are committed by military personnel in active service or in connection with active service.
1. Ex officio investigation by the ordinary courts
During the early stages of their detention, Messrs. Cabrera and Montiel presented various complaints of torture committed against them. It has been noted that although the statements rendered before the Public Prosecutor’s Office on May 4, 1999, made no reference to such actions,285 on May 6, 1999, the victims reported to the Federal Public Prosecutor’s Office that they had been beaten while at the Army base.286 Likewise, on May 7, 1999, in the presence of the Criminal Court of the Mina Judicial District, they described various forms of abuse suffered while in custody of the Army.287 Subsequently, on July 13, 1999, the victims amplified their preliminary statements,288 repeating that they had been subjected to degrading treatment and threats by state agents in order to make them sign a confession (supra paras. 134 and 175). Those statements were further amplified on December 23, 1999 before the Fifth District Court.289
Notwithstanding these statements, on August 26, 1999, the defense asked the Fifth District Judge to order the Public Prosecutor’s Office to investigate the allegations of torture, isolation and unlawful detention to which Messrs. Cabrera and Montiel were subjected at the Army facilities.290 Thus, on August 31, 1999, the Fifth District Judge ordered the Public Prosecutor’s Office to investigate those allegations291 and on October 1, 1999, the Federal Public Prosecutor’s Office of Coyuca de Catalán, in the state of Guerrero, launched the Preliminary Inquiry (supra para. 74).
The Court has pointed out that Article 8 of the Convention establishes that victims of human rights violations, or their families, have should have ample opportunities to be heard and to act in the respective proceedings, both in order to clarify the facts and punish those responsible, and to seek appropriate reparation.292 Likewise, it has held that Article 8 of the Inter-American Convention to Prevent and Punish Torture clearly establishes “if there is an accusation or well-grounded reason to believe that an act of torture has been committed within their jurisdiction, the States Parties shall guarantee that their respective authorities will proceed properly and immediately to conduct an investigation into the case and to initiate, whenever appropriate, the corresponding criminal process.”293 Also, the Court has pointed out that the obligation to investigate, and the corresponding right of the alleged victim or his family, not only stems from conventional standards of international law, which are binding upon the States Parties, but also from domestic legislation regarding the duty to investigate ex officio certain unlawful behavior and the rules that allow victims or their relatives to report or file complaints, evidence, petitions or engaged in any other proceeding, in order to participate in criminal investigation proceedings to determine the truth of the facts.294
This Court notes that the investigation against the alleged perpetrators of torture was initiated more than three months after the first mention that those acts were committed against Messrs. Cabrera and Montiel. Moreover, the Court notes that said investigation was initiated at the express request of the petitioners, on August 26, 1999 (supra para. 74). Based on the foregoing, it is clear to this Court that the State failed to comply with its obligation to conduct an ex officio investigation into actions that violated the human rights of Messrs. Cabrera and Montiel. Consequently, the Court concludes that the State violated Article 8(1) of the American Convention, as well as Article 8 of the Inter-American Convention to Prevent and Punish Torture.