60
must be effective in the terms of the Convention.211 The Court has reiterated that
this obligation implies that the remedy must be appropriate to combat the
violation and be applied effectively by the competent authority.212
183. As indicated above (supra paras. 176), the Court emphasizes that the
victim’s participation in criminal proceedings is not limited merely to redressing
the damage but, above all, to making effective her rights to know the truth and to
justice before a competent court. This necessarily implies that, at the domestic
level, adequate and effective remedies must exist for a victim to be able to contest
the competence of the authorities that exercise jurisdiction over matters regarding
which it is considered that they do not have competence. Consequently, in this
case, the remedy of amparo [relief] was not effective to allow Mrs. Fernández
Ortega to contest the hearing of the rape by the military jurisdiction, and this
constitutes a violation of Article 25(1) of the American Convention.
C.
rape
Due diligence in processing the complaint and investigating the
184. The Inter-American Commission argued that Mrs. Fernández Ortega sought
the protection of the authorities, but was confronted by “a system of justice that
has not adapted its structures to respond to the specific needs of a […] victim of
[sexual] abuse.” The State incurred in serious errors when investigating the facts
and processing Mrs. Fernández Ortega’s complaint: i) on March 24, 2002, the
official of the Common Public Prosecutor’s Office refused to receive the alleged
victim’s complaint on learning that those accused of committing the offense were
soldiers, and only received it following the intervention of the Inspector General of
the Human Rights Commission of Guerrero; ii) there were no interpreters who
spoke Me’paa and, consequently, Mrs. Fernández Ortega had to be assisted by
someone from her community in order to file the complaint; iii) there were no
female medical personnel available to perform the gynecological examination, so
that the alleged victim “was referred to the Ayutla public hospital and had to wait
until the following day to be examined”; iv) the female doctor who finally evaluated
her was not a forensic physician, but rather a general practitioner and lacked the
special knowledge to treat victims of this type of offense, and v) the medical
examination focused on a physical and gynecological examination, was not
detailed, and did not include any findings on psychological aspects; moreover, even
though more than eight years have elapsed since the incident, the psychological
report on the alleged victim is still pending. Subsequently, the technical errors and
omissions continued when the State experts failed to observe scientific
investigation methodology applicable to samples of semen as biological evidence of
the offense, and did not anticipate the need to carry out DNA testing. To the
contrary, “they caused the destruction of the samples taken from the victim’s
vaginal cavity, which was basic fundamental evidence, revealing a lack of respect
for women victims of sexual offenses and the failure to give priority to such
offenses in the entities where justice is imparted.” Hence, they thwarted the
possibility of identifying the alleged perpetrators. Given the aforementioned, the
Commission requested the Court to declare that the State violated Articles 8 and
25 of the American Convention in relation with Article 1.1 thereof.
185. Regarding the specific obligation to punish violence against women, the
Commission indicated that it had received “information about the barriers that
211
Cf. Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on
Human Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 24; Case of Radillla
Pacheco, supra note 32, para. 296, and Case of Chitay Nech et al., supra note 18, para. 202.
212
Cf. Case of Maritza Urrutia, supra note 111, para 117. Case of Radillla Pacheco, supra note 32,
para. 296, and Case of Chitay Nech et al., supra note 18, para. 202.