2 2. On December 29, 2010, the State submitted a request for interpretation under Articles 67 of the Convention and 68 of the Rules of Procedure. Mexico asked the Court to clarify the meaning and scope of: a) “Paragraph 103 [of the judgment], directly related to paragraphs 115, 116 and 117 thereof, in order to clarify whether the indication determining the participation of soldiers in the acts perpetrated against Mrs. Fernández Ortega [constitutes] prejudgment of those allegedly responsible, as regards their number and specific status as military personnel,”3 and b) “Paragraph 177 of the judgment and, if appropriate, clarify whether its interpretation of the involvement of the military jurisdiction in the investigation into the facts constitutes prejudgment with regard to those probably responsible for the violations indicated in that paragraph.”4 3 The paragraphs mentioned by the State indicate: 103. As a starting point, the Court considers it convenient to highlight that in regard to the international responsibility of the State, the fact that it was one or several state agents who raped Mrs. Fernandez Ortega is irrelevant. This Court reiterates that the determination of individual responsibility does not pertain to the Court, but rather to the competent domestic courts, yet it is the Court’s responsibility to acknowledge the facts brought to its attention and to classify them in the exercise of its contentious jurisdiction, pursuant to the evidence presented by the parties. 115. On the other hand, the Court has no evidence that disproves what Mrs. Fernandez Ortega has said. With regard to the medical examinations, it should be emphasized that the alleged victim only received medical assistance on one occasion after reporting the facts, from a general practitioner, who performed a physical and gynecological examination from which she determined that “there was no evidence of violence.” In this regard, the Court observes that the medical certificate concurs with the different statements made by Mrs. Fernández Ortega, because, in none of them, the alleged victim says that she opposed physical resistance to the attack. In this regard, the Court notes that international jurisprudence has established that the use of force cannot be considered an essential element to punish non-consensual sexual acts, and that evidence of the existence of physical resistance to such acts cannot be required; rather it is sufficient that there are coercive elements in the conduct. In this case, it is established that the act was committed by three armed soldiers in a situation of extreme coercion, aggravated by the fact that it occurred in a context of a relationship of authority. 116. More than eight years after the incident occurred, the State has not provided any evidence in the proceedings in this case that contradicts the fact that Mrs. Fernández Ortega was raped. In this regard, the Court finds that the burden falls on the State to disprove the accusations concerning its responsibility, and it cannot justify itself based, exclusively, on the uncertainty of whether the rape occurred and its authorship, when this results from its own errors or shortcomings, by destroying evidence that was in its custody. To conclude the contrary would entail allowing the State to shield itself in the negligence and ineffectiveness of the criminal investigation in order to ignore its responsibility for the violation of rights established in the American Convention. Based on the above, the Court finds it proven that Mrs. Fernández Ortega was the victim of rape, committed by a soldier in the presence of two other soldiers who observed the perpetration of the rape, while she was in her own home. 117. Since the Court has found it proven that Mrs. Fernández Ortega was the victim of acts of sexual violence committed by State agents, it must decide how this should be classified from a juridical point of view. 4 The paragraph mentioned by the State establishes: 177. In no case does the rape of someone by military personnel bear a relationship to the military discipline or mission. To the contrary, the offense committed by military personnel against Mrs. Fernández Ortega affected juridical rights protected by domestic criminal law and the American Convention, such as the victim’s personal integrity and dignity. It is evident that such conduct is openly contrary to the obligations to respect and to protect human rights and, consequently, is excluded from the competence of the military jurisdiction. Based on the foregoing, the Court concludes that the intervention of the military justice system in the preliminary investigation of the rape was contrary to the parameters concerning the exceptional and restrictive nature of that system and involved the application of the military jurisdiction that functioned without taking into account the nature of the acts involved. This conclusion is valid in the present case, even though the incident is only at the investigation stage by the Military Public Prosecutor’s Office. As revealed by the criteria indicated above, the incompatibility of the American Convention with the