48
family life are intrinsically connected, because the residence is the space in which
private and family life can evolve freely.141
158. Mrs. Fernandez Ortega stated that on the days that the events occurred,
“[s]he was inside her residence with [her] children [and that] at that point, eleven
[s]oldiers arrived, [and] three [of them] […] came [into her] home without [her]
consent.”142 Using this language she spoke and before the Public Prosecutor’s
Office to file a claim based on the facts and before the Court in the presence of a
public notary. On her behalf, her daughter Noemí Prisciliano Fernández, in
rendering her statement to the Public Prosecutor’s Office and before this Court, said
that she was in the kitchen with Mrs. Fernández Ortega when the three soldiers
entered.143 The State indicated that the Political Constitution and the Code of
Military Justice prohibit the military from entering domestic residences.
159. Based on the abovementioned, the Court deems that, military solders
entering Mrs. Fernandez Ortega’s residence without documented legal authorization
to do so, and without the consent from its occupants, constituted an arbitrary and
abusive interference at her family residence. Therefore, the Court concludes that
the right enshrined in Article 11(2) of the American Convention was violated, in
relation with Article 1(1) of the same, to the detriment of Mrs. Fernández Ortega,
Mr. Prisciliano Sierra, and Noemí, Ana Luz, Colosio and Nélida, all with the surname
of Prisciliano Fernández.
IX
ARTICLES 8 (JUDICIAL GUARANTEES)144 AND 25 (JUDICIAL
PROTECTION),145 IN RELATION TO ARTICLES 1(1) (OBLIGATION TO
RESPECT RIGHTS) AND 2 (DOMESTIC LEGAL EFFECTS)146
OF THE AMERICAN CONVENTION, ARTICLE 7 OF THE CONVENTION OF
BELÉM DO PARÁ AND ARTICLES 1, 6, AND 8 OF THE INTER-AMERICAN
CONVENTION TO PREVENT AND PUNISH TORTURE
160. In order to examine the alleged violations of Articles 8 and 25 of the
American Convention and the alleged noncompliance with the obligations enshrined
141
Cf. Case of the Masacre of Ituango, supra note 117, paras. 193 and 194, and Case of Escué
Zapata. Merits, Reparations, and Costs. Judgment of July 4, 2007. Series C No. 165, para. 95.
142
Cf. Complaint filed by Mrs. Fernández Ortega before the Public Prosecutor of the Common
Jurisdiction of the Judicial District of Allende, supra note 69, folio 6836. Likewise, see sworn statement
before public notary of Mrs. Fernández Ortega, supra note 62, folio 1484.
143
Sworn statement before public notary of Noemí Prisciliano Fernández, supra note 68, folio,
1493.
144
Article 8(1) of the American Convention establishes:
1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established by law, in the substantiation of
any accusation of a criminal nature made against him or for the determination of his rights and
obligations of a civil, labor, fiscal, or any other nature.
145
Article 25(1) of the American Convention establishes:
1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a
competent court or tribunal for protection against acts that violate his fundamental rights recognized by
the constitution or laws of the state concerned or by this Convention, even though such violation may
have been committed by persons acting in the course of their official duties.
146
Article 2 of the American Convention establishes:
Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by
legislative or other provisions, the States Parties undertake to adopt, in accordance with their
constitutional processes and the provisions of this Convention, such legislative or other measures as
may be necessary to give effect to those rights or freedoms.