I/A Court H.R., Case of Fernández Ortega et al. v. Mexico. Preliminary Objection, Merits, Reparations, and Costs. Judgment of August 30, 2010. Series C No. 215.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2011-2-e.pdf

 

Headnotes:

Violence against women is a manifestation of the historically unequal power relations between women and men that pervades every sector of society and strikes at its very foundation. Rape is a paradigmatic form of violence against women, and its consequences go far beyond affecting the direct victim.


As with torture, rape may have the objective of intimidating, degrading, humiliating, punishing, or controlling the victim. The objective and subjective elements that classify an act as torture relate to the severity of the suffering and to the intent to commit and the purpose of the act.


The concept of «private life» includes sexual life and the right to establish and develop relationships. Rape is an intrusion into a person’s sexual life, and annuls one’s right to decide freely with whom to have intimate relations, causing the victim to lose total control over these most personal and intimate decisions, and over his or her basic bodily functions.


The entrance of State agents into a person’s residence without documented legal authorisation to do so and without consent constitutes an arbitrary and abusive interference into the family residence and a violation of the right to privacy.


Conduct that entails human rights violations, such as rape, cannot be tried under the military justice system, even if committed by military personnel.


In cases of violence against women, the general obligations established in the American Convention on Human Rights are complemented and enhanced by the specific obligations arising for States parties under the Convention on the Prevention, Punishment and Eradication of Violence Against Women («Convention of Belém do Pará»). Article 7.b of this latter Convention specifically obliges States parties to apply due diligence to prevent, punish, and eradicate violence against women, taking into account the State’s obligation to eliminate it and to ensure that victims trust State institutions established for their protection.


Among other requirements, in the course of a criminal investigation for rape:

 

  1. the victim’s statement should be taken in a safe, private, and comfortable environment;
  2. the victim’s statement should be recorded so as to limit the need for repetition;
  3.  the victim should be provided with medical and psychological treatment under a protocol for such attention aimed at reducing the consequences of the rape;
  4. an immediate medical and psychological examination should be carried out by trained personnel of the sex preferred by the victim, if possible, and the victim should be informed that she can be accompanied by a trusted person;
  5. an immediate examination of the scene of the crime must be carried out and investigative measures should be coordinated and documented; evidence should be handled with care and in such a way that guarantees its chain of custody, and must include sufficient samples and all possible tests to determine the perpetrator of the act; and
  6. the victim must have access to free legal assistance at all stages of proceedings.

 

The right to access to justice without discrimination includes the right of rape victims to be able to file complaints and obtain information in their own languages.


Rape necessarily entails severe suffering for victims, who face complex consequences of a psychological and social nature.


Rape is an offense that generally takes place in the absence of persons other than the victim and the aggressor. Thus, the victim’s testimony becomes fundamental. It is not unusual that retellings of traumatic acts of this nature be imprecise.


Summary:

 

I. The events in this case occurred in a context of violence by law enforcement and military personnel against women. In March 2002, Inés Fernández Ortega, of the Me´paa indigenous community, was at home with her children when a group of approximately eleven soldiers approached her house. Three of them entered and requested information on her husband. When she did not respond, one of the soldiers raped her while the other two watched. Ms Fernández Ortega’s children ran to their grandparents’house just before the rape.Once Ms Fernández Ortega denounced these events, a preliminary investigation was initiated before a civilian criminal court, but the case was transferred to the military courts when it was established that military personnel could have been involved. Ms Fernández Ortega attempted to challenge this transfer, but was unsuccessful. The investigations remain at a preliminary stage.


The Inter-American Commission on Human Rights filed an application against the State of Mexico in May 2009 alleging violations of Article 5 ACHR (Right to Personal Integrity), Article 8 ACHR (Right to Judicial Guarantees) and Article 25 ACHR (Right to Judicial Protection), in relation to the general obligation to respect and ensure human rights established in Article 1.1 thereof, to the detriment of Ms Fernández Ortega and several members of her family. In addition, the Commission alleged the violation of Article 11 ACHR (Right to Honour and Dignity), in relation to Article 1.1 thereof, and of Article 7 of the Convention of Belém do Pará, to the detriment of Ms Fernández Ortega. Last, the Commission alleged that the State had failed to comply with its obligations under Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture («Convention Against Torture»).


The representatives generally agreed with the Commission, but also alleged the State’s failure to comply with the obligation established in Article 2 ACHR (Domestic Legal Effects) to adopt domestic legislative measures, as well as the violation of Article 16 ACHR (Freedom of Association) and Article 24 ACHR (Equal Protection under the law).


The State acknowledged its responsibility for the violation of Articles 8.1 and 25 ACHR.

 

II. In its judgment, the Court found that the State violated Articles 5.2, 11.1 and 11.2 ACHR, in relation to Article 1.1 thereof, Articles 1, 2 and 6 of the Convention Against Torture, and Article 7.a of the Convention of Belém do Pará to the detriment of Ms Fernández Ortega because the acts of the military personnel were carried out intentionally, caused her severe suffering, and had the purpose of punishing her for her failure to provide information; because the rape affected essential aspects of her private life, was an intrusion into her sexual life, and nullified her right to decide freely with whom to have intimate relations, causing her to lose control over this most personal and intimate of decisions and over her basic bodily functions; and because this was gender-based violence. The Court also found that the State violated Article 5.1 ACHR, in relation to Article 1.1 thereof, to the detriment of Ms Fernández Ortega, due to the suffering arising from the treatment she received from authorities while filing a claim and the feelings of deep fear and powerlessness she felt due to the military presence and inability to obtain justice; and to the detriment of her next of kin, due to the fear and frustrations suffered an account of the rape and unsuccessful attempts at obtaining justice, and to the resulting affectations to their family relations.


Furthermore, the Court found that the State violated Article 11.2 ACHR to the detriment of Ms Fernández Ortega and her nuclear family because soldiers entered their home without documented legal authorisation to do so and without consent.


Additionally, the Court found that the State had violated the rights established in Articles 8.1 and 25.1 ACHR to the detriment of Ms Fernández Ortega because it initiated investigations into her rape under the military jurisdiction, which should never decide upon the human rights of a civilian. Because the assignment of the case was based on a legal provision that did not limit military jurisdiction to crimes strictly related to military functions, the Court also found a related violation to Article 2 ACHR.


Moreover, the Court declared that the State violated Article 25.1 ACHR because the amparo (constitutional) recourses Ms Fernández Ortega filed in order to contest the military jurisdiction were ineffective in guaranteeing her rights to the truth and to justice. It also declared that the State violated Articles 8.1 and 25 ACHR and that it did not comply with its obligations under Article 7.b of the Convention of Belém do Pará because a prosecutorial official initially refused to receive Ms Fernández Ortega’s complaint, requiring another official to ensure that the first fulfilled his legal obligations; her declaration was not taken under minimum conditions of care and privacy; she was forced to repeat her declaration several times despite the revictimisation this could induce; there were undue delays in the taking of evidence at the scene of the crime; medical evidence obtained from the victim was mishandled; the State did not endeavour to take other forms of evidence; there were undue delays in the processing of her case; she did not receive adequate psychological and medical attention; and medical and prosecuting authorities did not use an action protocol for this type of case. In addition, the State failed to comply with the obligation to guarantee, without discrimination, the right to access to justice because Ms Fernández Ortega was not able to file a complaint and receive information in her indigenous language, but was forced to ask someone she knew to serve as an interpreter.


However, the Court did not find a violation of Article 16 ACHR, as the representatives’allegations were based on facts that were not alleged in the Commission’s application. Nor did it find a violation of Article 24 ACHR, as this provision prohibits unequal protection sanctioned in domestic law.


Accordingly, the Court ordered the State to pay damages and costs; carry out investigations and, if applicable, initiate criminal proceedings under the ordinary court system; examine the conduct of the prosecutorial official that initially refused to take Ms Fernández Ortega’s complaint; amend the Military Code of Justice; create an effective remedy for the purpose of challenging the military jurisdiction; carry out a public act of acknowledgement of international responsibility; publicise the Judgment with Ms Fernández Ortega’s consent; provide medical and psychological care to the victims; continue with the creation of a standardised action protocol for the investigation of sexual abuse; continue implementing permanent training programs on the diligent investigation of cases of sexual abuse that include an ethnicity perspective; implement an obligatory human rights training program for the armed forces; and provide educational scholarships to Ms Fernández Ortega’s children.


Additionally, in order to allow Ms Fernández Ortega to reincorporate herself into her community, the State was ordered to provide the resources necessary for the women of the Me’paa indigenous community of Barranca Tecoani to be able to establish a women’s centre in which educational activities are held on human and women’s rights.


Finally, because Barranca Tecoani does not have a middle school, thirty girls from that community must currently work as domestic servants without pay, for up to twelve hours a day, in order to be able to live and study in Ayutla de los Libres, which has a middle school but is located far their homes. Therefore, the Court ordered the State to adopt measures so that the girls of the community of Barranca Tecoani that currently carry out their middle school studies in the city of Ayutla de los Libres are provided with housing and a proper diet, in order for them to continue receiving an education at the institutions they attend. The Court also indicated that this measure could be complied with through the establishment of a middle school in Barranca Tecoani.


III. Ad Hoc Judge Alejandro Carlos Espinosa rendered a concurring opinion.