42
American Convention, and as a consequence, also of Article 5(1) of the same
instrument, regarding the psychological integrity of Mrs. Fernández Ortega.
*
*
*
136. The Tribunal accepted the recognition of international responsibility of the
State in regard to the violation of the right to personal integrity to the detriment of
Mrs. Fernández Ortega, in relation to the recognized violations of Articles 8(1) and
25 of the American Convention (supra paras. 21 to 25).
137. The Court also notes that from the testimony of Mrs. Fernández Ortega,
indications of the damage to her personal integrity are evident and related to the
treatment she received by filing a claim before the authorities,123 as well as feelings
of deep fear caused by military presence and the powerlessness related to the lack
of justice in her case.124
138. In view of the aforementioned and taking into account the recognition of
State responsibility, the Court declares that Mexico violated the right to personal
integrity of Mrs. Fernández Ortega enshrined in Article 5(1) of the American
Convention, in relation with Article 1(1) of the same.
ii) Personal integrity of the next of kin of Mrs. Fernández Ortega
139. The Commission noted that the personal integrity of the next of kin of Mrs.
Fernández Ortega was affected due to the facts of the complaint and the actions
and omissions of the authorities in the investigation of the same. For the
Commission, “it is evident that a number of circumstances affected the members of
[Mrs.] Fernández Ortega’s family nucleus, such as the manner in which her children
witnessed the rape and torture, the feelings of powerlessness and insecurity of
[her] next of kin before the presence of the Mexican [A]rmy [...] in the area where
they reside[,] and in their involvement in relationships with their own indigenous
community, among others.” Therefore, it asked the Court to declare that the State
violated Article 5(1) of the American Convention, in relation with Article 1(1)
thereof, to the detriment of the next of kin of Mrs. Fernández Ortega.
123
Mrs. Fernández Ortega stated: “[a]lmost all of them were men, there was no [female] doctor,
nor a person who spoke Me'phaa to tell the lawyer in Spanish what I am testifying[,] but there wasn’t a
female doctor, [...] only a man and he told me he was going to check me, but I refused, I had already
suffered so much giving my statement where everyone was listening to me to then be seen by a doctor.
I remember well how the doctor from the public prosecutor told me "why don’t you want me to examine
you, if they weren’t women who raped you, they were men, why don’t you let me examine you,” sworn
statement of Mrs. Fernández Ortega before a public notary, supra note 62, folios 1485, and sworn
statement of Mr. Lugo Cortes before a public notary, supra note 67, folios 1533 and 1534.
124
Mrs. Fernandez Ortega declared: “[w]hen I think about what happened to me, I feel very bad
because the authorities have also not given me justice, with so much work, walking, being hungry,
spending, and with shame, I have gone all the way to Ayutla so that justice is rendered, but nothing has
been done. I have looked everywhere, but no one from the government does anything. They have never
accepted that it was soldiers who raped me, everyone doubts me, and they do not believe my statement
and that is why they do not render justice.” Likewise, she stated “[I] did not feel well and was afraid,
but I wanted the complaint to continue because what they did to me was not OK” and she added “[e]ach
time we returned from Ayutla there were many problems, because my children staid alone, and I was
afraid […] that more [soldiers] would come and do something to them. In addition, we didn’t even have
money to be going and we would not take good care of the parcel and the animals.” Finally, she stated
“[i]f the Public Prosecutor of Ayutla[,] who is not a soldier[,] did not treat me well or believe me, how
would it be with the military if it was [those] who raped me. […]I got very sad when they told me that
my case was going to be taken by the same [soldiers] that raped me because then there would be no
one responsible, because they would not accuse each other, and that is why I thought about abandoning
my case, and I did not want to do anything anymore,” sworn statement of Mrs. Fernández Ortega
rendered before the public notary, supra note 62, folios 1486 a 1488.