65
v)
Mrs. Fernández Ortega was not provided with appropriate medical
and psychological treatment, and
vi)
The expert evidence was not protected. To the contrary, as Mexico
has admitted, the evidence collected during the medical examination of the
victim was handled incompetently. The Court notes in particular that this
evidence was exhausted, without foreseeing the basic need to perform
complementary examinations, such as DNA, to help identify the possible
perpetrator.
196. Moreover, the Court observes with particular concern that the authorities in
charge of the investigation focused their efforts on repeatedly summoning Mrs.
Fernández Ortega to declare and not on obtaining and safeguarding other evidence.
The Court emphasizes that, in cases of rape, insofar as possible, the investigation
must try to avoid revictimization or the re-experiencing of the profoundly traumatic
experience each time the victim remembers or testifies about what happened.
197. The Court observes that, in the present case, several of the government
employees who intervened initially in the complaint made by Mrs. Fernández
Ortega showed a complete absence of motivation, sensitivity, and capacity.
Furthermore, the lack of elemental medical resources, and also the failure of the
medical officials and the officials of the Public Prosecutor’s Office who initially
attended Mrs. Fernández Ortega to use an action protocol were especially serious
and had negative consequences in regard to the attention merited to the victim and
on the legal investigation of the rape.
198. Based on the abovementioned and on the State’s partial acknowledgement
of responsibility, the Inter-American Court concludes that the State authorities did
not act with due diligence in the investigation of the rape of Mrs. Fernández
Ortega, which, additionally, exceeded a reasonable time. Consequently, the State
violated the rights to judicial guarantees and to judicial protection established in
Articles 8(1) and 25(1) of the American Convention, in relation to Article 1(1)
thereof, and Article 7(b) of the Inter-American Convention for the Prevention,
Punishment, and Eradication of Violence against Women, to the detriment of Mrs.
Fernández Ortega.
*
*
*
199. In relation to that alleged by the representatives and Commission regarding
discrimination in the access to justice on behalf of Mrs. Fernández Ortega, the
Court notes that the representatives considered violated the rights to equal
protection and non-discrimination in the access to justice of Mrs. Fernández Ortega,
recognized in Articles 8 and 25, 24, and 1(1) of the American Convention, whereas
the Commission only raised arguments regarding the failure to comply with the
latter rule with the respective substantive norms. In this regard, the Court recalls
that the general obligations of Article 1(1) refers to the State’s responsibility to
respect and guarantee “without discrimination” the rights contained in the
American Convention, while Article 24 protects the right to “equal protection of the
law.”223 In other words, if it is argued that a State discriminates in this regard or in
223
Cf. Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica.
Advisory Opinion OC-4/84 of January 19, 1984. Series A No. 4, paras. 53 and 54. Also cf. Case of Apitz
Barbera et al., (“First Court of Administrative Disputes”) v. Venezuela. Preliminary Exceptions, Merits,
Reparations, and Costs. Judgment of August 5, 2008. Series C No. 182, para. 209; Case of Ríos et al.,
supra note 46, para. 348, and Case of Perozo et al., supra note 46, para. 379.
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