10
considered proved, inter alia, the following omissions and irregularities in the
investigation: (a) an official of the Public Prosecution Service initially refused to
accept Mrs. Fernández Ortega’s complaint, a situation which required the
intervention of another public servant to make the first official comply with his legal
obligation; (b) the victim, who at the time did not speak Spanish, was not provided
with the assistance of an interpreter, but rather had to be assisted by an
acquaintance, which, in the Court’s opinion was not appropriate to respect her
cultural diversity, to ensure the quality of the content of her statement, and to
protect the confidentiality of the complaint; (c) it was not guaranteed that the
minimum attention and privacy due to the victim of this type of offense would be
respected when the rape complaint was made; to the contrary, the complaint was
made in a place with other people present, and the victim could even have been
heard by people she knew; (d) there was no immediate investigation of the crime
scene; rather, it took place 12 days after the complaint had been made.
Furthermore, there is no record that the authorities in charge of the investigation
collected or obtained the immediate evidence on other elements such as the clothes
that Mrs. Fernández Ortega was wearing on the day of the events; (e) the victim was
not provided with appropriate medical and psychological care, and (f) scientific
evidence was not protected. To the contrary, as Mexico has admitted, the evidence
collected during the victim’s medical examination was handled inadequately. Even
though the Court appreciated the adoption of certain measures, it indicated that the
State’s actions were insufficient and, in some cases, inappropriate to meet the
requirements of due diligence in a rape investigation.
29.
The Court has already determined in the admissibility requirements that a
request for interpretation should seek clarity or precision in the operative paragraphs
of the judgment or in considerations that have a bearing on the operative
paragraphs thereof (supra para. 11). In this case, the State requested the
interpretation of certain paragraphs of the judgment without specifying their possible
relevance to the operative paragraphs; the only exception to this is the reference or
connection that the State makes to the eleventh operative paragraph of the
judgment, with the request that this paragraph be clarified. This operative paragraph
clearly and precisely orders the State to conduct the investigation efficiently and
within a reasonable time and, as appropriate, the criminal proceedings that it is
processing in relation to the rape of Mrs. Fernández Ortega, in order to determine
the corresponding criminal responsibilities and to apply, as appropriate, the
punishments and other consequences established by law, all in accordance with
paragraphs 228 to 230 of the judgment.
30.
In this regard, the Court observes that, in its references to the eleventh
operative paragraph of the judgment, Mexico correctly understands “the State’s
obligation to maintain any inquiries that may be initiated against military personnel
within the ordinary jurisdiction”; that “the State is ordered to continue its
investigations in the ordinary jurisdiction even if it is decided to investigate military
personnel and file proceedings against them,” and that the military system of justice
is the inappropriate jurisdiction for the investigation of human rights violations. This
reveals that the State understood the simple and clear mandate arising from the
Service in Ayutla de los Libres; the inability to provide medical and psychological attention; the
destruction of the gynecological evidence owing to lack of diligence in handling it; the error in the chain of
custody; the delay in taking statements and that the investigations have taken eight years without the
authorities having been able to reach any conclusive decisions on the offense and the probable authors.
Nevertheless, it asserted that it had not violated other rights of the American Convention or any other
inter-American legal instrument.