49
in other relevant Inter-American instruments, the Court will establish: a) the facts
of this case in relation to the preliminary inquiries; it will then set out the
arguments of the parties and the findings of the Court in relation to: b) the
intervention of the military justice system; c) the alleged lack of due diligence in
the processing of the complaint and the investigation of the rape; d) the State’s
request concerning specific aspects of the investigations, and e) the alleged threats
to and harassment of people involved in the case.
A.
Facts relating to the criminal investigation
i) Preliminary Investigation ALLE/SC/03/76/2002 - Civil Public Prosecutor’s
Office
161. On March 24, 2002, as a result of the complaint filed by Mrs. Fernández
Ortega, Preliminary Investigation ALLE/SC/03/76/2002 was opened for the
offenses of rape, unlawful entry, abuse of authority, and the crimes of consequence
thereof (supra para. 85). On April 5, 2002, when Mrs. Fernández Ortega was not at
home,147 the scene of the incident was officially inspected by an agent of the
Allende Public Prosecutor’s Office and other government employees. On April 18,
2002, Mrs. Fernández Ortega expanded her statement before the Allende Public
Prosecutor’s Office.148 Subsequently, on May 17, 2002, having taken several
measures relating to the identification of the possible perpetrators,149 the Allende
Public Prosecutor’s Office declared itself incompetent because “the victim ha[d]
indicated in her first statement that those who committed the offense were
members of the Army,” and forwarded the file of Preliminary Investigation
ALLE/SC/03/76/2002 to the Military Public Prosecutor’s Office adjoined to the 35th
Military Zone.150
ii) Preliminary Investigation
Public Prosecutor’s Office
35ZM/06/2002 and SC/172/2005 - Military
162. Almost simultaneously with Mrs. Fernández Ortega’s complaint, on March
27, 2002, the Commander of the 35th Military Zone presented to the Military Public
147
Cf. Certificate of site visit issued by the Public Prosecutor’s Office of the Common Jurisdiction of
the Judicial District of Allende on April 5, 2002 (case file of annexes to the answer to the application,
tome II, folios 6846 to 6848).
148
Cf. Brief requesting expansion of the complaint filed by Mrs. Fernández Ortega, supra note 69,
tome II, folio 6869.
149
Among other procedures, assistance from the judicial police of the state of Guerrero was
requested for the investigations, the visit to the crime scene, the results of the lab studies from the
examination of the vaginal cavity of the victim were requested, names were requested, as well as
descriptions, photographs of the members of the Mexican Army found in the region on the day the facts
occurred, Cf. Orders from the Agent of the Allende Common Public Prosecutor’s Office: No. 282 and No.
443 on March 24 and April 24, 2002 (case file of annexes to the answer to the application, tome II,
folios 6830 and 6880, respectively); No. 466 of April 26, 2002 (case file of annexes to the answer to the
application, tome II, folio 6884); No. 469 of April 26, 2002 (case file of annexes to the answer to the
application, tome II, folio 6887); No. 327 of April 2, 2002 (case file of annexes to the answer to the
application, tome II, folio 6850); No. 374 y No. 460 of April 10 and 26, 2002 (case file of annexes to the
answer to the application, tome II, folios 6857 and 6881, respectively), and No. 468 of April 26, 2002
(case file of annexes to the answer to the application, tome II, folio 6886). On the other hand, on May 6,
2002 at the Public Prosecutor’s Office of the Common Jurisdiction of the Judicial District of Allende they
were to carry out a sketch of the likely perpetrators of the crimes committed to the detriment of Mrs.
Fernández Ortega. One member of the OPIM present at the event indicated that Mrs. Fernández Ortega
would be taken on May 7, 2002, to the area of investigatory services to carry out the drawing of the
sketch of the likely perpetrators. Cf. Certification issued by the Public Prosecutor’s Office of the Common
Jurisdiction of the Judicial District of Allende on May 6, 2002 (case file of annexes to the answer to the
application, tome II, folios 6891 and 6892).
150
Cf. Agreement to forward for lack of jurisdiction of the Agent of the Public Prosecutor’s Office of
the Common Jurisdiction of Allende on May 17, 2002 (case file of annexes to the answer to the
application, tome II, folios 6898 and 6903).