34
relating to a problem of consistency, may be due to the alleged victim’s difficulties
in expressing herself or to the intervention of third parties, or result from the use of
different languages or interpretations in the translations. Besides, the incident
described by Mrs. Fernández Ortega relates to a traumatic experience suffered by
her, the impact of which may mean that certain imprecision will arise upon recalling
the facts. Moreover, the statements were made at different times between 2002
and 2009.
106. Nevertheless, after reading said statements, the Court finds that the
differences in her story are not substantial. It can be seen that Mrs. Fernández
Ortega used the expression “they raped me,” and refers to an act as “rape” or
“sexual abuse,” indistinctly, to refer to the whole injurious incident, without
identifying those terms, exclusively, with the act of sexual penetration. Thus,
similarly, she indicates at different times that it was one or three soldiers that
raped her. A clear example of this dual use of the concept of rape by Mrs.
Fernández Ortega can be seen in her August 14, 2009 expansion of the complaint
before the Civil Public Prosecutor’s Office (supra para. 101), where she stated “the
men who raped me are members of the Mexican Army,” and immediately after in
that same statement, she indicated “I saw them close up, especially the one who
raped me, because he was on top of me.” Hence, the Court finds that this is a turn
of phrase or use of language rather than a factual inconsistency with regard to the
facts, and that, in reality, it only appears to be a discrepancy and does not impair
the credibility of her statement.
107. In addition, the Court has not found elements of Mrs. Fernández Ortega’s
inherent situation that would impair the credibility of her statements. The alleged
victim is an indigenous woman, who lives in an isolated mountainous area, who had
to walk several hours to file a complaint about a rape that would, in all probability,
have negative repercussions in her social and cultural medium – such as possible
rejection by her community – before justice and health care authorities who did not
speak her language. In this sense, she pressed charges and was persistent with her
claim, knowing that in the area in which she lives there is a continuing presence of
soldiers, some of whom had been criminally charged with committing a serious
crime.
108. In synthesis, the Court concludes that Mrs. Fernández Ortega’s different
versions of her story consistently reveal the following facts: i) on March 22, 2002,
she was at home with her four children; ii) at approximately three in the afternoon,
three armed members of the Army entered her home without her consent, while
other soldiers remained outside the house; iii) those who entered pointed their
rifles at her, asking her to give them certain information which was unanswered,
and iv) in this context of considerable coercion, alone and surrounded by three
armed soldiers, she was obliged to lie down on the ground, and while one of the
soldiers raped her, the other two observed the perpetration of the rape.
ii) Military presence in the area on the day of the incident
109. First, despite that indicated by the State (supra para. 96), the Court finds
that it has been proven that there was a military presence in the area at the time of
the incident. The case file of the present case contains statements by infantry
soldiers, taken during the Preliminary Investigation 35ZM/06/2002, on April 1,
2002, from which it is clear that the “Méndez” Operations Base, belonging to the
41st Infantry Battalion of the Mexican Army, was located about three kilometers
from Barranca Tecoani.93 Moreover, the Court finds that it has been proven that, on
93
Cf. Statements of nine infantry soldiers, four corporals of the infantry and one sublieutenant of
the infantry before the Military Public Prosecutor’s Office on April 1, 2002 (case file of annexes to the