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indigenous women face to obtain access to justice, which are generally related to
social exclusion and ethnic discrimination.” These barriers can be particularly
serious, since they represent forms of “multiple discrimination” because the alleged
victims are women, indigenous, and poor. Particularly in cases of the rape of
indigenous women, the investigators frequently refute the complaints and place the
burden of proof on the victim; in addition, the investigation mechanisms are flawed
and even threatening and disrespectful. Article 7(b) of the Convention of Belém do
Pará obliges the State to act with due diligence when investigating and punishing
violence against women, giving rise to specific obligations that complement the
State’s obligations as regards compliance with the rights embodied in the American
Convention. In the present case, the State failed in its obligation to act with due
diligence to prevent, investigate, and punish violence against women, contained in
Article 7 of the Convention of Belém do Pará. Lastly, the Commission asked the
Court to declare that “the absence of an impartial [and diligent] investigation of
torture, and the continuing impunity of those responsible, constitute a failure to
comply with the obligations established in Articles 1, 6, and 8 of the Convention
[Against Torture].”
186. The representatives stated that there had not been a “serious, complete,
and effective investigation into the facts [and,] as a result, the impunity of those
responsible had subsisted for more than [eight] years.” Among other aspects, the
representatives questioned that: i) the authorities did not initiate the investigation
of the rape for the offense of torture, taking into account the particularities of the
case and, hence, the international standards for the investigation of that type of
violation; ii) the Common Public Prosecutor’s Office made serious errors when
receiving the victim’s statement, which was not received by competent personnel
with experience in dealing with victims, who were aware of the context and would
be sensitive to the complainant; iii) the examinations of the victim were neither
immediate, nor made by competent professionals, and did not respect the relevant
international standards, the “questions that the female doctor asked the victim
were not appropriate, because she omitted important matters such as the actions
she took after the incident, for example, washing, or changing clothes, or the
whereabouts of the clothes she was wearing at the time of the rape,” and iv) the
authorities did not collect or adequately protect evidence that was fundamental for
the investigation. In addition, the State authorities incorporated and assessed the
evidence in a biased, isolated and discriminatory manner, which “on several
occasions led to the investigation being closed.” In the civil jurisdiction, the State
did not take any measure on its own initiative to establish the truth of what
happened, but focused all the weight of the investigation on obtaining another
statement from the victim and, when they obtained it, the investigation was turned
over, a second time, to an authority without jurisdiction. Finally, the
representatives affirmed that the State had violated Articles 8 and 25 of the
American Convention owing to the unjustified delay in the investigation of the rape.
187. Regarding the obligation to punish violence against women, the
representatives argued that the State had failed to comply with Article 7(b) of the
Convention of Belém do Pará by failing to ensure the rights of Mrs. Fernández
Ortega, because it had not conducted a serious and effective investigation into the
incident of which she was a victim, since “the investigation of the rape […] was
plagued with irregularities, which resulted in the impossibility of obtaining justice,
leaving the case in total impunity.” Finally, based on the same facts, they
concluded that the State had failed to comply with the obligations established in
Articles 1, 6, and 8 of the Convention Against Torture.
188. In the response to the application, the State, based on different arguments,
denied that it had violated Mrs. Fernández Ortega’s rights to judicial guarantees
and judicial protection. Subsequently, Mexico made a partial acknowledgement of
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