In addition to the points mentioned concerning the ex officio investigation into the allegations of torture, the Court confirms that on October 10, 1999, the agent of the Federal Public Prosecutor’s Office submitted a question regarding lack of jurisdiction ratione materiae to the Agent of the Federal Public Prosecutor’s Office and State Representative of the Attorney General’s Office of the Republic in the state of Guerrero, considering that “the accused were on active service when they committed the unlawful actions and therefore those acts should be considered as violations of military discipline.”295 On November 5, 1999, the Agent of the Federal Public Prosecutor’s Office decided to decline jurisdiction to continue with the corresponding investigations, to the Agent of the Military Prosecutor’s Office, arguing that the suspects were Mexican military officers on active service on the day of the events. On December 14, 1999, said Agent of the Federal Public Prosecutor declined jurisdiction to his military counterpart in the 35th Military Zone.296 Finally, on June 13, 2000, the Office of the Prosecutor General for Military Justice issued an order to archive the case file, considering that there were no elements to prove the torture.297
It has also been mentioned that (supra para. 75) at the same time, Messrs. Cabrera and Montiel filed a complaint before the Human Rights Defense Commission of the state of Guerrero on May 14, 1999, concerning the facts of this case. As a result, case file CODDEHUM-CRTC/031/99-I was opened, which was subsequently referred to the CNDH due to jurisdiction issues. The CNDH launched an investigation in order to corroborate the facts. The CNDH then issued Recommendation 8/2000, which determined that “given the repeated silence [on the part of the Office of the Prosecutor General for Military Justice],”298 said office “presumed that the [allegations] of torture were true” in keeping with Articles 38 and 70 of the CNDH Law” (supra para. 75). Also, in one of its recommendations, the CNDH ordered “the Office for the Prosecutor General of the Military Justice (PGJM) to open a preliminary investigation against the members of the Mexican Army who authorized, supervised, implemented and carried out the operation in the period from May 1 through May 4, 1999.”299
In response to the CNDH’s recommendations, the State ordered the opening of Preliminary Inquiry number SC/304/2000/VII-I. On February 10, 2001, the Office of the Military Prosecutor General went to the Iguala de la Independencia Prison, where the victims were being held in order to confirm their complaints. That day, Messrs. Cabrera and Montiel filed a brief addressed to the PGJM, demanding that said institution decline jurisdiction and return the Preliminary Inquiry to the Attorney General’s jurisdiction.300 In the case file before the Court, there is no response to such a request. On November 3, 2001, the Office of the Military Prosecutor General recommended that the criminal record be archived, since it determined that:
“the body of evidence in this inquiry is not sufficient to demonstrate that civilians RODOLFO MONTIEL FLORES and TEODORO CABRERA GARCÍA were tortured while in the custody of military personnel.
To refer the present inquiry to the Prosecutor General for Military Justice, with a reasoned report proposing that no criminal action be brought and that the inquiry be definitively filed, with the exceptions that the law provides, so that after consulting his assigned agents, he may decide whether or not to confirm the proposal […].”301
Regarding the intervention of the military courts to hear matters that constitute human rights violations, this Court recalls that it has ruled in this regard in relation to Mexico in the Judgment of the case of Radilla Pacheco, a precedent that has been repeated in the cases of Fernández Ortega and Rosendo Cantú. Bearing in mind the foregoing and the points made by the State (supra para. 188), for the purposes of this case, the Court deems sufficient to reiterate that:
[i]n a democratic State of law, the military criminal jurisdiction shall have a restrictive and exceptional scope and be directed toward the protection of special juridical interests, related to the tasks characteristic of the military forces. Therefore, the Court has previously stated that only active soldiers shall be prosecuted within the military jurisdiction for the perpetration of crimes or offenses that based on their own nature threaten the juridical rights of the military order itself.302
Likewise, […] taking into account the nature of the crime and the juridical right damaged, military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish the perpetrators of human rights violations; instead, the processing of those responsible always corresponds to the ordinary justice system. In that sense, the Court, on numerous occasions, has indicated that “[w]hen the military jurisdiction assumes competence over a matter that should be heard by the ordinary jurisdiction, it violates the right to a competent Court and, a fortiori, to due process,” which is, at the same time, intimately related to the right to a fair trial. The judge in charge of hearing a case shall be competent, as well as independent and impartial.303 Regarding situations that violate human rights of civilians, the military jurisdiction cannot operate under any circumstance.304 The Court [has] point[ed] out that when the military courts hear of acts that constitute human rights violations against civilians they exercise jurisdiction not only with regard to the defendant, who must necessarily be a person with an active military status, but also with regard to the civilian victim, who has the right to participate in the criminal proceedings, not only for the purposes of the respective reparation of the damage but also to exercise his right to the truth and to justice […]. Thus, the victims of human rights violations and their families 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.305
To summarize, according to this Court’s case law, the military jurisdiction is not competent to investigate and, if applicable, prosecute and punish the perpetrators of alleged human rights violations; instead, those responsible must always be tried by the ordinary justice system. This conclusion applies not only to cases of torture, forced disappearance and rape, but to all human rights violations.
The use of cruel, inhuman or degrading treatment against a person by military officers is an action that is in no way related to the military discipline or mission. On the contrary, the alleged acts committed by military officers against Messrs. Cabrera and Montiel affected juridical rights protected under domestic criminal law and the American Convention, such as the personal integrity and dignity of the victims. Clearly, such conduct is openly contrary to the duties to respect and protect human rights and, therefore, is excluded from the competence of the military jurisdiction. Based on the foregoing considerations, the Court concludes that the intervention of the military courts in the preliminary investigation of torture was contrary to the parameters of exceptionality and restriction characteristic of such courts and entailed the application of a personal jurisdiction that was exercised without taking into account the nature of the acts involved.306
This conclusion is valid in the present case, even though the matter did not go beyond the investigative stage at the Office of the Public Prosecutor for Military Justice. As is clear from the abovementioned criteria, the incompatibility between the American Convention and h the intervention of military courts in these types of cases not only applies to act of prosecuting by a court, but mainly to the investigation itself, given that its actions constitute the starting point and the necessary premise for the subsequent intervention of an non-competent Court.307
201. As to the State’s arguments that any shortcomings associated with the intervention of the military criminal courts would be remedied by fact that in the investigation against Messrs. Cabrera and Montiel conducted by the ordinary court, the allegations of torture were heard in order to decide whether certain evidence should be excluded, it is clear that the sole objective of said proceeding was not to investigate, prosecute and, if applicable, punish the alleged responsible for torture. Therefore, it is not possible to remedy or confirm the effects of a judicial investigation launched in light of the specific complaint regarding torture or mistreatment, through decisions made within the proceeding, the purpose of which was not to shed light on facts but, on the contrary, to investigate the petitioners. Accordingly, the Court concludes that the State violated the right to a fair trial [judicial guarantess] enshrined in Article 8(1) of the American Convention, in relation to Article 1(1) thereof,to the detriment of Messrs. Cabrera and Montiel. As it has held in previous cases,308 based on the conclusion that the military criminal courts were not competent, the Court considers that it is not necessary to rule on other arguments regarding the independence or impartiality of the military courts or the possible violation, based on the same facts, of other Inter-American treaties.