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the facts to the detriment of Mrs. Fernandez Ortega, which given its characteristics
constituted an act of torture, qualifying it as an act of rape. In effect, the
investigation under alleged rape is in accord with the facts of the complaint in the
specific case and with the general obligation that acts of torture constitute crimes in
domestic law and with the requirement of the severity of the punishment. In this
sense, the Court observes that rape is a crime defined in the Criminal Code of the
state of Guerrero226 and in the Federal Criminal Code of Mexico,227 which establish
penalties of eight to sixteen years’ imprisonment and eight to fourteen years’
imprisonment, respectively. Based on the foregoing, it is not necessary to make an
additional ruling in this regard, nor on the other alleged violations based on the
same facts and that were analyzed under other conventional obligations.
D.
Request of the State regarding specific aspects of the investigation
203. Lastly, in response to the State’s request (supra para. 17), the Court will
rule on the five aspects mentioned here:
A. Scrupulous respect for procedural guarantees
The State affirmed that the alleged victim: i) had, at all times, the possibility
of being heard by the ministerial (investigative) authorities and has had full
access to the case files; ii) was summoned on numerous occasions with the
guarantee of interpretation into her language and the presence of her
representatives, and iii) received explanations on the nature of the
competences in the case in person and through her representatives, and
response was given to her request that the Office of the Attorney General of
the Republic should participate in the procedures undertaken. In addition,
“the State has tried to respond to the alleged victim’s requests, even by
establishing an Inter-disciplinary group with a gender perspective.”
B. Interventions with a gender perspective
The State indicated that it had “implemented a collaboration mechanism with
a gender perspective among different ministerial authorities,” “to support
the measures taken by the [P]ublic [P]rosecutor’s [O]ffice of the state of
Guerrero” and in order “to avoid revictimization and to respond to the
request [of Mrs. Fernández Ortega] that the Office of the Attorney General of
the Republic be involved in the investigations.” Consequently, it asked the
Court to positively assess “that this interdisciplinary group with a gender
perspective was, at all times, fully available to travel to the places indicated
by the representatives to take measures and
keep communication channels open in order to respond to specific requests
concerning the investigations.” This group even obtained Mrs. Fernández
Ortega’s collaboration to make the artist’s sketch.
226
The Criminal Code of the state of Guerrero establishes:
Article 139: Whomever, by means of physical or moral violence copulates with a person of any gender,
will be punished by eight to sixteen years of prison and sixty to four hundred days fine.
Article 141: A punishment of eighteen to twenty-two years of prison and one hundred and twenty to five
hundred days fine will be imposed: […] III. When the copulative act is carried out by the perpetrator, in
the circumstances of his or her employment, when carrying out a public charge or when under carried
out while executing professional responsibilities. The agent will also be sentenced to dismissal of public
charges or employment and disqualification of eight years.
227
The Federal Criminal Code of Mexico establishes:
Article 265: Whomever, by means of physical or moral violence copulates with a person of any gender,
will be punished by eight to fourteen years of prison.
Article 266 bis: The punishment foreseen for sexual abuse and rape shall increase, by half at a minimum
and maximum, when: […] III. The crime is committed by a person carrying out a public charge or
employment or in the course of employment, using the means or under the circumstances of the
professional role. In addition to the prison sentence, the convicted individual will be disqualified from his
or her charge or employment or suspended for a term of five years from the exercise of said profession.
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