56
adequate and effective remedies must exist for a victim to be able to contest the
competence of the authorities that exercise jurisdiction over matters where it is
considered that they do not have jurisdiction.233 Consequently, in this case, the remedy
of amparo [relief] was not effective to allow Mrs. Rosendo Cantú to contest the hearing
of the rape by the military jurisdiction, and this constitutes a violation of Article 25(1) of
the Convention.
C.
Due diligence in processing the complaint and investigating the rape
168. The Inter-American Commission argued that the State restricted the access to
justice of Mrs. Rosendo Cantú by denying her medical care and by not acting with due
diligence to investigate and punish the rape of which she was a victim. In regards to the
deficient medical care, the Commission noted that: i) the doctor on call at the state
emergency clinic of the Caxitepec community where Mrs. Rosendo Cantu was seen on
February 18, 2002, refused to see her “because he did not want problems with the
soldiers” and because he did not have “the necessary equipment”; ii) on February 25,
2002, Mrs. Rosendo Cantu, together with her husband and daughter, walked for almost
eight hours to get to the General Hospital of Ayutla de los Libres and was not seen until
the next day because she “did not have an appointment”; iii) the medical examination
by a medical examiner took place on March 19, 2002, when “only physical evidence of
violence was evident,” and iv) the “gynecological examination carried out on [Mrs.]
Rosendo Cantú was focused on a physical and gynecological examination without
compiling the minimum parameters necessary to investigate the rape and without any
consideration of the psychological aspects involved.” This situation was aggravated
“because of [Mrs.] Rosendo Cantu’s condition as an indigenous minor of age.” Likewise,
the Commission indicated that, nevertheless, in “not offering Mrs. Rosendo [Cantu] the
due guarantees to file a complaint and receive an effective legal response,” the State
carried out an investigation with serious deficiencies: i) during her statement to the
Public Prosecutor’s Office she was not guaranteed the presence of an official interpreter
translator, privacy or special measures of protection in consideration of her state as an
adolescent and a victim of rape; ii) the State wasted “the opportunities to recognize
fundamental evidentiary elements in the case, obstructing as such the possibility of
identifying the alleged perpetrators of the rape”; iii) the report of the physical and
gynecological examination was not detailed nor completed as recommended by the
Istanbul Protocol, and iv) the methods of investigation also did not comply with the
parameters established in said Protocol. As a consequence of the aforementioned, eight
years have passed since the incident of the crime, and “the investigation is in its initial
stages.” Based on the aforementioned, the Commission requested the Court to declare
that the State violated Articles 8 and 25 of the American Convention, in relation to
Article 1(1) of the same instrument.
169. Regarding the specific obligation to punish violence against women, the
Commission indicated that it had received “information about the barriers that
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, and 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, Mrs. Rosendo
Cantú was not provided with access to the necessary medical services as a victim of
rape, and this lack of diligence to provide and offer services has contributed to the
233
Cf. Case of Radillla Pacheco, supra note 36, para. 297.
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