62
its international responsibility concerning the right to judicial guarantees and to
judicial protection (supra paras. 16 and 18), although it asked the Court to rule on
certain specific points “in the context of its examination of Articles […] 8(1) and 25
of the Convention” (infra paras. 203 to 207).
189. In addition, regarding the alleged violation of the Convention of Belém do
Pará, when withdrawing its preliminary objection, Mexico specified that “this does
not mean that the State acknowledges violations of that Convention” in the present
case; to the contrary, it affirmed that said international instrument had not been
violated (supra para. 11). The “omissions acknowledged by the State during the
investigations […] necessarily involve a partial acknowledgement of responsibility
based on lack of appropriate attention to the complaint of an act of gender-based
violence, but do not constitute, in and of themselves, acts of gender-based
violence.” The shortcomings in the medical and psychological attention […] for Mrs.
Fernández Ortega were remedied "by female personnel at the hospital in Ayutla de
los Libres” and that the State’s omissions “were never founded on a criteria based
on the alleged victim’s gender.” On the other hand, the State also referred to
various initiatives of public policy implemented in order to prevent, punish, and
eradicate gender-based violence and to ensure the non-repetition of events such as
those suffered by Mrs. Fernández Ortega. Regarding the alleged violation of the
Inter-American Convention to Prevent and Punish Torture, Mexico observed that,
since “the constituent [objective and subjective] elements have not been verified to
be able to conclude that, in the present case,] Mrs. […] Fernández Ortega was the
victim of an act of torture,” and thus, requested the Court to determine the
inexistence of violations of Articles 1, 6, and 8 of said Convention, mentioned in
regard to the investigation of the facts.
*
*
*
190. The Court notes that Mexico acknowledged its international responsibility in
relation to Articles 8 and 25 of the American Convention for the following facts: the
delay in providing medical care; the lack of specialized medical personnel in the
agency of the Public Prosecutor’s Office in Ayutla de los Libres; the inability to
provide medical and psychological care; the destruction of the gynecological
evidence owing to lack of diligence in handling it; the errors 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 conclusive decisions
on the offense and the probable perpetrators. Nevertheless, it affirmed that it had
not violated other rights established in the American Convention, or in any other
Inter-American legal instrument (supra para. 17). Consequently, the Court still
needs to determine certain facts and to decide the dispute with regard to whether
the criminal investigation failed to comply with unacknowledged aspects of the
guarantees arising from Articles 8(1) and 25(1) of the American Convention, in
relation to Articles 1(1) and 2 thereof, and also Article 7 of the Convention of
Belém do Pará and Articles 1, 6, and 8 of the Inter-American Convention to Prevent
and Punish Torture.
191. The Court recalls that the obligation to investigate human rights violations is
one of the positive measures that States must adopt to guarantee the rights
established in the Convention.213 The obligation to investigate is an obligation of
means rather than results. However, it must be undertaken by the State as an
inherent juridical obligation and not as a mere formality preordained to be
ineffective, or as a step taken by private interests that depends upon the
procedural initiative of the victims or their next of kin, or upon their offer of
213
Cf. Case of Velásquez Rodríguez. Merits, supra note 27, paras. 166 and 176; Case of Valle
Jaramillo et al., supra note 137, para. 98, and Case of Garibaldi, supra note 195, para. 112
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