23
continues processing the investigation of the rape under the military justice system.
Even though they indicated that this issue had been referred to previously, they
made several observations on the measures adopted in the investigation,
“revealing that the military justice system is not only incompetent, but also partial,
inadequate, and ineffective.” The Commission indicated that it had no observations
to make on the documentation forwarded by Mexico.
74.
With regard to the documents of Preliminary Investigation No.
SC/179/2009/II-E of the Military Attorney General’s Office forwarded by the State
together with its final written arguments, the Court observes that these
procedures carried out between January 6, 2010, and May 21, 2010; in other
words, after the date of the response to the application, so they could not be
provided previously. Therefore, these documents will be considered evidence of
supervening facts in the terms of Article 46(3) of the Rules of Procedure and
admitted to the extent that they are pertinent. The Court will take into
consideration the corresponding observations of the Commission and of the
representatives, as well as the body of evidence, in application of the rules of
sound judicial discretion.
75.
Regarding the documents on alleged supervening facts forwarded by the
representatives, the State indicated that these facts concern the provisional
measures ordered by the Court, which do not form part of the purpose of the
present contentious case. The facts do not have a phenomenological connection
with the facts of this case, and exceed its factual framework. For its part, the
Commission indicated that it had no observations to make in this regard.
76.
Regarding the documentation about the events that allegedly occurred on
May 17, 2010, recounting that Ana Luz Prisciliano Fernández, one of the alleged
victims in this case, was followed and received death threats, the Court indicates
that these events do not form part of the merits of the present case and,
therefore, cannot be admitted pursuant to Article 46(3) of the Rules of Procedure.
Notwithstanding the foregoing, the Court will consider these facts in the context of
the provisional measures duly ordered.
VIII
ARTICLES 5 (RIGHT TO HUMANE TREATMENT)47 AND 11 (RIGHT TO
PRIVACY [HONOR AND PROTECTION]),48 IN RELATION TO ARTICLE
1(1) (OBLIGATION TO RESPECT RIGHTS)49 OF THE AMERICAN
CONVENTION AND 1,2, AND 6 OF THE INTER-AMERICAN CONVENTION
47
Article 5 of the Convention establishes, inter alia:
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or
treatment. All persons deprived of their liberty shall be treated with respect for the inherent
dignity of the human person.
48
Article 11 of the Convention establishes, inter alia:
1. Everyone has the right to have his honor respected and his dignity recognized.
2. No one may be the object of arbitrary or abusive interference with his private life, his
family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.
49
Article 1(1) of the Convention establishes, inter alia: “[t]he States Parties to this Convention
undertake to respect the rights and freedoms recognized herein and to ensure to all persons
subject to their jurisdiction the free and full exercise of those rights and freedoms, without any
discrimination for reasons of race, color, sex, language, religion, political or other opinion,
national or social origin, economic status, birth, or any other social condition.”