69
some progress was made while this group was functioning; for example the artist’s
sketch with the aid of Mrs. Fernández Ortega, a measure that could lead to the
identification of the possible authors of the rape. The Court reiterates that it is
fundamental to provide support to a victim of rape from the onset of the
investigation in order to ensure safety and an appropriate framework for referring
to the act suffered and to facilitate participation, as simply and as carefully as
possible, in the investigation procedures. The Court observes that, even though
said group with a gender perspective played a positive role, it began its work in
January 2007, as a result of a commitment made by the State regarding a hearing
of this case held before the Inter-American Commission on October 12, 2007; in
other words, almost five years after the facts had been reported.228
206. Regarding the failure of Mrs. Fernández Ortega to present herself for the
summons to testify, this Court understands that, when investigating criminal acts,
even when the burden of the investigation should not rest on the victim, his or her
participation may be necessary. In this regard, the Court appreciates the State’s
effort to summon Mrs. Fernández Ortega to testify on various occasions and, thus,
advance the investigation. Nevertheless, irrespective of the discrepancies
concerning the number of summonses and the alleged errors in the writs of
summons, the Court recalls its previous observations with regard to repeatedly
summoning a victim of sexual offenses to testify (supra paras. 194 and 196) and
also finds it is evident that a victim of rape attributed to soldiers feels profound fear
and apprehension when summoned to appear by the Military Public Prosecutor’s
Office, irrespective of whether this authority will conduct the procedure directly or
carry it out using officials of the Civil Public Prosecutor’s Office.
207. Lastly, the Court assesses positively the different investigative measures
mentioned by the State. The efforts indicated must be continued by the Civil Public
Prosecutor’s Office so that the investigation is concluded as diligently and urgently
as possible, in order to determine the truth of the facts and investigate and, if
appropriate, punish those responsible for the rape of Mrs. Fernández Ortega.
E.
case
Alleged threats and harassment to those persons connected to the
208. The Commission alleged that the acts of harassment and threats supposedly
suffered by Mrs. Fernández Ortega and her family, among other people, related to
the present case “illustrate the absence of justice and absence of adequate
measures on behalf of the State.” It recalled the adoption of precautionary and
provisional measures and indicated that the threats to the life and personal
integrity of the victims and the acts of harassment had worsened during the two
months prior to the presentation of the application. The persistence of the situation
of vulnerability, fear, and threats means that the State should adopt specific
measures to resolve this situation.
209. The representatives argued that Mrs. Fernández Ortega and her family
“have had to face constant threats and attacks on their integrity, merely because
they asked for justice […]. The most serious of these acts was the murder of […]
her brother, Lorenzo Fernández Ortega […]. It is alleged that his death was closely
related to the search to obtain justice for the rape [of Mrs. Fernández Ortega].” Mr.
Prisciliano Sierra had also “been the victim of threats and harassment, as a result
of his participation in advancing the investigation into the facts.” With regard to her
brother, Ocotlán Fernández Ortega, his participation in OPIM “has resulted in his
being the victim of harassment and surveillance, which has meant that recently he
has had to abandon his community because he fears that the threats could be
228
Cf. Answer to the application (case file on the merits, tome II, folio 514).
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