74
A.
Injured party
224. Under Article 63(1) of the American Convention, anyone declared a victim of
the violation of any right embodied therein is considered an injured party. In the
present case, the victims are Mrs. Fernández Ortega, her husband, Mr. Prisciliano
Sierra, and their children, Noemí, Ana Luz, Colosio, Nélida and Neftalí, all bearing
the surname of Prisciliano Fernández; accordingly, they will be considered
beneficiaries of the reparations ordered by this Court.
B.
Measures of satisfaction, rehabilitation, and guarantees of nonrepetition
i) Obligation to investigate the facts and to identify, prosecute, and
eventually punish those responsible
225. The Commission and the representatives substantially coincided in what
regards the obligation to investigate the facts, and where applicable, to punish
those responsible. In sum, they requested the Court to order the State to carry out
an investigation with due diligence, on the facts of the present case, so as to
ascertain the historical truth of what occurred, identify those responsible, and apply
the appropriate punishment. Moreover, they noted that the victim and her next of
kin should have full access and means to act in all the stages of the investigation
according to domestic law and the American Convention. In addition, they
requested that security be guaranteed to the victim, her next of kin, and the
representatives in relation to the threats and persecution experienced as a
consequence of the search for justice.
226. The Commission added that the State must adopt all the legal and
administrative measures necessary in order to complete the investigation in the
ordinary forum, forwarding to it all of the prior antecedents of the military
investigation. Furthermore, it indicated that the State must investigate and punish
all those responsible for the obstruction of justice, cover-up, and impunity that
have prevailed in relation to this case.
227. The representatives added that the State must adopt affirmative measures
that guarantee access to justice of Mrs. Fernández Ortega, taking into account the
cultural, social, economic, and other obstacles faced and offer the means to
overcome them. Finally, they also requested administrative sanction of the public
agents responsible for the irregularities verified in the investigation.
228. The Court has established, bearing in mind the State’s partial
acknowledgement of responsibility, that the investigation of the rape of Mrs.
Fernández Ortega was not conducted to date with due diligence or under the
appropriate jurisdiction and, consequently, that Mexico has violated the rights to
judicial guarantees and to judicial protection established in Articles 8 and 25 of the
American Convention (supra para. 175 to 183 and 191 to 201). Consequently, as it
has on other occasions,240 the Court finds that the State must efficiently conduct
the criminal investigation into the facts of this case effectively and with due
diligence, in order to determine the corresponding criminal responsibilities and
apply the punishments and consequences established by law. This obligation must
be complied with within a reasonable time, respecting the criteria mentioned above
concerning investigations in this type of case.241
240
Cf. Velásquez Rodríguez, supra note 27, para. 174; Case of Chitay Nech et al., supra note 18,
para. 235, and Case of Manuel Cepeda Vargas, supra note 18, para. 216.
241
Cf. Case of Radilla Pacheco, supra note 33, para. 331. See Case of the Dos Erres Massacre,
supra note 20, para. 233; Case of Chitay Nech et al., supra note 18, para. 235, and Case of Manuel
Cepeda Vargas, supra note 18, para. 216.
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