33
On the twenty-second day of March, two thousand and two, at around three in the
afternoon, I was at home with my children […] in the kitchen […] when about eleven
armed and uniformed soldiers approached along the path[;] three [of them …] entered my
house without my permission and asked me where did your husband steal the meat from;
are you going to tell us or not. As I don’t know much Spanish and was very frightened, I
couldn’t say anything; the three therefore pointed their rifles at me and one of them asked
me again loudly whether I was going to tell them from where my husband had stolen the
meat. Then one of the guachos [(soldiers)] […] grabbed my hands and told me to lie down
on the floor, pointing his rifle at me and, since he was aiming at me, I was afraid and laid
down on the floor near the door; then the other soldier […] grasped my hands with his
right hand and put his left hand under my skirt and lifted it up, seized the right-hand side
of my underpants and pulled them down and took them off. He then dropped his pants to
his knees and lay on top of me and sexually abused me against my will.
102. From the different statements made by Mrs. Fernández Ortega some
differences can be noted in the narration of the events, particularly with regard to
how the rape occurred. In the report of the incident before the Public Prosecutor’s
Office and in her statement before the public notary for this Court (supra paras. 85
and 28), she indicated that she had been raped by one soldier in the presence of
two others. In the first written expansion of this complaint before the Public
Prosecutor’s Office (supra para. 87), she indicated that three soldiers “raped” or
“sexually abused” her.
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,90 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.91
104. On the other hand, in regard to the content of the statements made by Mrs.
Fernandez Ortega, the Court considers that it is not unusual that the retelling of
acts of this nature contain some aspects that could be considered, a priori,
imprecision in the reporting. It is not the first time that an international human
rights court should note possible differences in the statements of individuals
relating the sexual abuse of which they have been victims.92
105. The Court notes that Mrs. Fernández Ortega speaks Me’paa, and to be
understood by the government employee who received her complaint, she had to
be assisted by someone who was not a professional interpreter. Other narrations of
the events, such as the expansion of the complaint, were made by submitting a
written brief and not by the direct testimony of the alleged victim. Since Mrs.
Fernández Ortega’s mother tongue is not Spanish, it is evident that, although she
signed them, the documents were drafted by a third person, who also had to
reproduce in Spanish what she stated in Me’paa, or to write what the person
interpreting into Spanish indicated, a circumstance that also can undoubtedly lead
to lack of precision. As a consequence, the differences in the story, rather than
90
Cf. Case of Velásquez Rodríguez. Merits, supra note 27, para. 134; Case of Anzualdo Castro v.
Perú. Preliminary Objections, Merits, Reparations, and Costs. Judgment of September 22, 2009. Series C
No. 202, para. 36, and Case of Manuel Cepeda Vargas, supra note 18, para. 41.
91
Cf. Case of Cantoral Huamaní and García Santa Cruz v. Perú. Preliminary Objections, Merits,
Reparations, and Costs. Judgment of July 10, 2007. Series C No. 167, para. 87; Case of Kawas
Fernández v. Honduras. Merits, Reparations, and Costs. Judgment of April 3, 2009. Series C No. 196,
para. 79, and Case of Manuel Cepeda Vargas, supra note 18, para. 41.
92
Cf. ECHR, Case of Aydin v. Turkey (GC), Judgment of 25 September 1997, App. No.
57/1996/676/866, paras. 72 and 73.