46
testify before officials at a young age “created a secondary victimization, because
she recalled[,] in the presence of governmental authorities[,] what happened to her
mother, thus causing her profound feelings of fear and anger, and this sensation
remained for a long time.” 135
148. The expert witness, Correa González, stated that, “the emotional climate of
the family […] has been permeated by fear[. O]ne observes their reluctance to
speak about the emotions which affect them, they are afraid of reviving that which
has been kept in silence for so long, not knowing what to say, nor what to do. This
feeling of being in constant risk has made them remain in a place of uncertainty
and insecurity, causing such emotional exhaustion that they are prevented from
improving their family relationship.” 136
149. Based on the aforementioned considerations, the Court concludes that the
rape of Mrs. Fernández Ortega as well as the facts related to the pursuit of justice
and impunity in the present case, involved a violation of the right to personal
integrity enshrined in Article 5(1) of the Convention against Mr. Prisciliano Sierra
and Noemí, Ana Luz, Colosio, Nelida, and Neftalí, all by the surname of Prisciliano
Fernandez, in relation with Article 1(1) thereof.
150. On the other hand, the Court notes that the argument posed by the
representatives regarding the alleged violation of Article 19 of the American
Convention is time barred (supra para. 140), to which it will not rule on the matter.
Moreover, the Court deems that it is not necessary to rule on other arguments that
refer to the same facts and which have been analyzed in the light of other
conventional obligations.
*
*
*
151. As for the mother and siblings of Mrs. Fernández Ortega, the Court considers
it relevant to recall that although in its jurisprudence it has determined that it can
declare the violation of the right to mental and moral integrity of direct family
members of victims of certain violations of human rights by applying a presumption
iuris tantum regarding mothers and fathers, sons and daughters, husbands and
wives, and permanent companions, and this has been limited to specific types of
cases, as long as it is a response to its particular circumstances, as has occurred
for example, in cases of massacres, forced disappearances of individuals, and
extrajudicial executions.137 There is no presumption, therefore, that the violation of
personal integrity exists in all cases involving family members, nor to all family
members. In this case, the Court will consider whether the evidence on record
merits a violation of personal integrity for the mother and siblings of Mrs.
Fernández Ortega.
152. With regard to Mrs. Maria Lidia Ortega, mother of Mrs. Fernández Ortega,
the Court only has the expert testimony of Mrs. Correa González to rely on, which
indicates some of the afflictions she suffered. The Court does not have sufficient
evidence that demonstrates that the harm claimed involved a violation of the
personal integrity of said individual. Moreover, certain arguments made by the
135
Cf. Psycho-social expert opinion rendered before a public notary by Mrs. Correa González, supra
note 113, folio 1618.
136
Cf. Psycho-social expert opinion rendered before a public notary by Mrs. Correa González, supra
note 113, 1619.
137
Cf. Case of Valle Jaramillo et al. v. Colombia. Merits, Reparations, and Costs. Judgment of
November 27, 2008. Series C No. 192, para. 119; Case of Radilla Pacheco, supra note 33, para. 162,
and Case of Chitay Nech et al., supra note 18, para. 220.