47
representatives to support the suffering of Mrs. Maria Lidia Ortega, -namely that
“she has taken over the care of [her grandchildren] when necessary to allow [Mrs.
Fernández Ortega] to carry out the steps required in the pursuit of justice,” are not
consistent with the testimonies of Mrs. Fernández Ortega, her husband, and
daughter, regarding the consequences of the search for justice, which involved, as
was indicated, that the children were left alone (supra para. 146).
153. Regarding Messrs. Lorenzo and Ocotlán Fernández Ortega, the
representatives referred to suffering experienced by the rape of their sister and the
lack of justice. Mr. Lorenzo Fernández Ortega, because of the support he offered his
sister in the pursuit of justice, was tortured until he was murdered. While the
preliminary investigation opened by this fact indicated that the body of Mr. Lorenzo
Fernández Ortega, found dead on February 10, 2008, had numerous injuries,138
and that Mrs. Fernández Ortega and the others affirm that said fact is related to
this case, 139 the Court notes that this involves generic claims that lack evidentiary
support. As such, the Court does not have sufficient evidence to establish the
causal link between the aggression suffered by Mr. Lorenzo Fernandez with the
facts of the present case. Similarly, the Court has no evidentiary testimony, expert
or documented, which demonstrates the existence of a violation of the right to
personal integrity of Mr. Ocotlán Fernandez Ortega.
154. Based on the foregoing, the Court does not find as proven the violation of
the right to personal integrity enshrined in Article 5(1) of the Convention, under
Article 1(1) thereof, to the detriment of María Lidia Ortega, Lorenzo, and Ocotlán
Fernández Ortega.
F.
Interference in the family residence
155. The representatives affirmed that the members of the Army invaded the
residence of the victim and her next of kin in an arbitrary manner, to which they
requested the Court declare a violation of the right to private life enshrined in
Article 11(2) of the Convention, to the detriment of Mrs. Fernández Ortega and her
family.
156. This Court has established that the alleged victim, her next of kin, or her
representatives can evoke Rights distinct from those in the application of the
Commission, based on the same facts presented by it.140
157. Moreover, the Court has established that the protection of private life, family
life, and residence, implies the recognition that a personal space exist that must be
free and immune from abusive or arbitrary invasions or aggressions by third parties
or the public authorities. In this regard, an individual’s home and private and
138
Cf. Public Prosecutor’s Office of the Common Jurisdiction of Allende. Preliminary Investigation
ALLE/SC/01/032/2008 opened for murder, supra note 30, folios 5714 to 5725.
139
Mrs. Fernández Ortega stated: “[a]lso in the month of February of [2008], my brother Lorenzo
Fernández Ortega, who was always accompanying me and giving me advise and encouragement to
continue seeking justice, was found dead and tortured. […] instead of giving me justice for the rape
they did to me, they killed my brother who supported me a lot and always helped me,” Cf. Sworn
statement before public notary of Mrs. Fernández Ortega, supra note 62, folio 1489. In similar terms, cf.
Psycho-social expert opinion of Mrs. Correa González, supra note 113, folios 1612 and 1613, and sworn
statement before public notary of Noemí Prisciliano Fernández, supra note 68, folio 1495
140
Cf. Case of “Five Pensioners” v. Perú. Merits, Reparations, and Costs. Judgment of February 28,
2003. Series C No. 98, para. 155; Case of González et al., (“Cotton Fields”), supra note 15, para. 232,
and Case of Manuel Cepeda Vargas, supra note 18, para. 49.