41
131. Based on the foregoing, the Court concludes that the State is responsible for
violating the rights to personal integrity and to personal dignity and private life
embodied in Articles 5(2) and 11(1) and 11(2) of the American Convention, in
relation to Article 1(1) thereof, and Articles 1, 2, and 6 of the Inter-American
Convention to Prevent and Punish Torture, as well as for the failure to comply with
the right enshrined in Article 7(a) of the Inter-American Convention on the
Prevention, Punishment, and Eradication of Violence against Women to the
detriment of Mrs. Fernández Ortega.
132. On the other hand, the Court finds that it is not necessary to rule on other
allegations based on the same facts. Furthermore, a possible violation of the
American Convention in relation to the alleged flaws in the investigation of the facts
of the present case will be analyzed in Chapter IX of this Judgment, corresponding
to Articles 8 and 25 of that Convention.
E.
Personal Integrity of Mrs. Fernandez Ortega and her next of kin
i) Personal Integrity of Mrs. Fernandez Ortega
133. The Commission stated that Mrs. Fernández Ortega reported to the
authorities despite the cultural, economic and social, as well as language barriers,
that she was the victim of a rape. Since she filed her complaint, she has faced
resistance, silence, negligence, harassment, fear, revictimization, a forum that
lacks jurisdiction and interest in seeking those responsible, among many other
obstacles, faced in her search for justice. The lack of clarity regarding the facts and
the resulting impunity, emphasized the discrimination, subordination, and racism
against the alleged victim and delegitimized her before members of her community.
The State’s response has caused emotional harm to her as well as to her family and
constitutes humiliation and degradation in violation of the right to personal integrity
and private life. The investigation methods of the military forum and the lack of
protection revictimized Mrs. Fernández Ortega in contravention of the Convention of
Belém do Pará, a situation compounded by her condition as an indigenous women
and her lack of knowledge of the language. Based on the abovementioned, it asked
the Court to declare the State responsible for violation of Article 5(1) and 11 of the
American Convention, to the detriment of Mrs. Fernández Ortega, in relation with
Article 1(1) of that instrument, due to the hardship suffered from the inadequate
investigation carried out by state authorities.
134. On its behalf, the representatives agreed with the Commission regarding the
violation of the right to personal integrity to the detriment of Mrs. Fernández
Ortega for the impunity in which the case remains, whose investigation has lasted
more than eight years, thus prolonging her suffering and deepening the wound left
by the facts of the rape. They indicated that the victim has experienced feelings of
despair and has lost confidence in the State, which has not attended to her call for
justice but has protected the military, allowing the investigation to be carried out
by the same institution allegedly responsible for the facts. Moreover, the
opportunity to appear before the military “caused her a considerable level of
anxiety and distress.” Therefore, the representatives asked the Court to declare
that the State “is responsible for the violation of the victim's right to personal
integrity for the suffering caused as a result of the state of absolute impunity which
remains of the assault inflicted upon her,” taking into account “the indigenous world
view and the effects these events have caused in the community as a whole.”
135. At the public hearing and in its final written arguments, Mexico recognized
that “the delay in medical care [...], the loss of gynecological tests, and the delay in
investigation of the facts of the case, are a violation of Articles 8(1) and 25 of the