Gallardo Rodrigez v Mexico 11.430, 43/96

Mexican Army Brigadier General Jose Francisco Gallardo Rodriguez alleged that since 1988 has been the victim of threats, harassment and intimidation by height level commanders of the Secretariat for National Defence, that he has been subjected to unjust judicial procedures and imprisonment, and that the referred Secretariat undertook a campaign of defamation and sought to discredit him, and that in 1993 he was arbitrarily detained and imprisoned, upon false accusations Mexico alleged inadmissibility because of non exhaustion of local remedies Resolution 33. The rule of prior exhaustion of domestic remedies allows the State to resolve the problem under its internal law before being confronted with an international proceeding 34. However, the right of the state to remedy through its own means an alleged human rights violation within its jurisdiction entail the obligation to provide such remedies in accordance with the generally recognised principles of international law [Article 46 of the Convention] 40. Adequate domestic remedies are those which are suitable to address an infringement of a legal right

41. Effective domestic remedies are those which are capable of producing the result for which it was designated 51. The American Convention requires that the state provide effective remedies to victims of human rights violations. In this case General Gallardo has not had such remedy that protects him against the harassment of which he has and continues to be a victim, for even though the Federal Justice system has handed down decisions favourable to him on several occasions, the effectiveness of these decisions has been minimal, since they have not succeed in bringing a halt to the denunciations made and investigations carried out against his person 62. The fact that an extensive series of investigations and criminal cases have been instituted; that there have been successive trials following a declaration of innocence; that these acts target the same person; that the person has been acquitted in each of the cases tried to date; and that the person in question is now being held in custody, lead … to presume that General Gallardo’s right to be presumed innocent has been violated [Article 8(2) of the Convention provides that every one indicted of an offence has the right to be presumed innocent until their guilty is legally established] 114. An agent of the administration commits an abuse of power when, in performing an act within its competence and respecting the forms imposed by legislation, he makes use of his power in cases, for motives and to purposes other than those for which this power was conferred upon him. The abuse of power is an abuse of mandate, an abuse of law… Mexican justice authorities, whether regular or military, … have used the public power … for purposes other than those established in Mexican legislation, and in so doing have abuse that power [Mexico has opened 15 preliminary inquires and nine criminal cases against Gallardo, in none of which the accused has been found responsible]