75
229. In particular, the State must guarantee, through its competent institutions,
that the preliminary investigation which is being conducted into the facts that
constituted the rape of Mrs. Fernández Ortega remain within the ordinary
jurisdiction. Furthermore, if new criminal actions based on the facts of this case are
filed against some of those presumably responsible who are or have been members
of the Armed Forces, the authorities in charge of the case must ensure that they
are conducted under the ordinary jurisdiction and, in no circumstances, under the
military forum.242
230. The Court reiterates that during the investigation and prosecution, the State
must ensure the victim full access and capacity to act at all stages. In a case such
as this in which the victim, a woman and indigenous person, has had to face
various obstacles in order to access justice, the State has the obligation to continue
to offer the means by which the victim may fully access and participate in all the
proceedings of the case and, to this end, it must ensure that an interpreter is
provided, all support with a gender perspective, based on her circumstance of
special vulnerability. Lastly, if Mrs. Fernández Ortega offers her consent, the results
of the proceedings must be disseminated, so that Mexican society learns the truth
about the incident.
231. In addition, on other occasions,243 the Court has ordered the State to initiate
disciplinary, administrative or criminal actions under its domestic law with regard to
those responsible for the different procedural and investigative irregularities in a
case. In the present case, the Court notes that Mexico advised that an
administrative investigation had been conducted with regard to the experts who
exhausted the samples, and they were sanctioned. For their part, the neither the
Commission nor the representatives, whom requested said measure, produced any
evidence to the contrary nor did they prove the impossibility of providing it.244
Consequently, the Court does not need to order any measure of reparation in this
regard. On the other hand, taking into account that in this case the agent at the
Public Prosecutor’s Office caused complications when receiving the complaint filed
by Mrs. Fernández Ortega (supra paras. 85 and 195), the Court orders the State to
examine this fact and the conduct of the respective official, in keeping with the
pertinent disciplinary norms.
232. Finally, in regard to the request to guarantee the security of the victims, the
next of kin, and the representatives, the Court recalls that the provisional measures
ordered opportunely by this Court remain in force. (supra para. 15).
ii) Adaptation of domestic law to the international standards of justice
233. The Commission asked that the Court to order Mexico to limit and restrict
the scope of the military jurisdiction, excluding it from hearing cases in which
human rights violations have been committed and, particularly, cases of sexual
abuse.
234. On its behalf, the representatives asked the Court to order the State to
reform Article 13 of the Political Constitution and Article 57 of the Code of Military
Justice in order to establish clearly and without any ambiguity that the military
system of justice must abstain, whatsoever the circumstances, from hearing cases
242
Cf. Case of Radilla Pacheco, supra note 33, para. 332.
243
Cf. Case of the Dos Erres Massacre, supra note 20, para. 233, subsection d.
244
The Commission only noted that it had not received the relevant information of the State
despite it having been requested. (case file on the merits, tome I, folio 26).
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