The ruling of the Inter-American Court of Human Rights of November 19, 2015 in the case of Velazquez Pais et al. (Guatemala, v. Guatemala) (Series C, No. 307).
The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).
Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica) for consideration. The complaint was then communicated to Guatemala.
The case has successfully examined the complaint about the state’s obligation to exercise particular care in investigating cases of violence against women.
The duty to exercise particular care in investigating cases of violence against women.
Circumstances of the case
The facts of the present case have arisen in the context of increasing violence against women and gender-related killings in Guatemala. It was proved that the authorities were notified of this situation at the latest in December 2001. In 2004 and 2005, the number of killings increased and has remained significant since then, with a high level of impunity.
Claudina Isabel Velásquez Paiz, a 19-year-old law student, told her family that she was at a party on the night of August 12, 2005. At about 11:45 p.m., after several cell phone calls, her parents last talked with her on the phone and then the connection was lost. On August 13, 2005, at about 2.00 am, Claudine's parents were informed that she could be in danger, and therefore they began her search. At about 2.50 or 2.55 they called the national civilian police, and in response to this at about 3.00 a patrol arrived in the Panorama area, where Claudine's parents informed the police that they were looking for her and that she could be in danger. Police officers escorted her parents from the Panorama area to the entrance to the Pinares area, where they informed them that they could do nothing more, that they should have expected at least 24 hours to report the disappearance of their daughter, and in the meantime they would continue to patrol.
Between 3.00 and 5.00, parents continued their search with the help of family and friends. At about 5:00 they came to the police station to report her disappearance, but they were again advised to wait 24 hours. Finally, at 8.30 their written statement was received at the San Cristobal Police Department of 1651.
At around 5 a.m., the Guatemalan volunteer fire brigade received an anonymous call to find a corpse in the Roosevelt area and drove to the scene. Later, two police officers arrived, an assistant prosecutor and other representatives of the investigating authorities. The body of the victim, which was discovered on the pavement, covered with a white sheet, was designated as "XX". The girl received bodily injuries and a gunshot wound to her forehead, her clothes were stained with blood, and there were signs of possible sexual abuse.
Claudine’s parents Velasquez called a friend who told them that in the morgue of the forensic service was an unidentified body that could belong to their daughter. Around noon, they identified her daughter, and her body was given to them by a forensic doctor. Later, the assistant prosecutor and laboratory assistants of the criminal investigation department arrived at the farewell ceremony with Claudia and received her fingerprints, threatening that her family would be charged with obstruction of justice if they refused to allow this procedure.
A criminal case was opened in 2005 at the first instance tribunal for criminal cases, drugs and crimes against the environment. Nine persons were involved in the investigation, but not one of them was charged. In 2006, the human rights ombudsman also launched an investigation and issued a resolution finding violations of Claudina Velazquez's right to life, personal security and justice within a reasonable time, as well as the right to judicial protection of her and her family. The resolution also declared several government bodies responsible for violations. In addition, disciplinary proceedings were instituted, as a result of which two investigators made an oral observation and the forensic medical officer was suspended from work for 20 days.
QUESTIONS OF LAW
(a) Preliminary objections. The State raised two preliminary objections: (i) lack of jurisdiction ratione materiae with respect to article 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Belem do Pará Convention ((do Convention)) and (ii) non-exhaustion of domestic legal remedies The Inter-American Court dismissed the first objection, considering that Article 12 of the above Convention conferred jurisdiction on it because it did not exclude its application of the rules and procedures established for individual complaints.The second preliminary objection was also rejected, as the Government had indirectly acknowledged that at the time of filing complaints domestic remedies were implemented with undue delay or were ineffective.In addition, the state did not indicate which remedies were available or whether they were adequate, suitable and effective.
Ratione materiae (lat.) - “in view of the circumstances connected with the subject of consideration”, the criterion of the merits of the appeal, applied in assessing the admissibility of the complaint (translator's note).
(b) Articles 4 (1) and 5 (1) (rights to life and security of person) of the American Convention on Human Rights (hereinafter - ACHR) in relation to articles 1 (1) (obligation to respect and ensure rights), 2 (domestic legal consequences) and 7 of the Belem do Para Convention. The Inter-American Court recalled its consistent case-law, according to which the state cannot be held responsible for every violation of human rights committed in relations between citizens under its jurisdiction. So, in order to establish a violation of the obligation to prevent violations of the rights to life and personal integrity, it must be established that the authorities of the state (i) knew or should have known about the existence of a real and immediate threat to the life and / or personal integrity of a person or group of persons and (ii) failed to take the necessary measures within their powers, from which, according to a reasonable assessment, one could expect to prevent or eliminate such a threat.
The Inter-American Court recalled that in the context of the increased violence against women that the state is aware of, there is an obligation to exercise special care when the state authorities are notified that the life or personal integrity of the woman is in danger. This obligation requires a comprehensive search during the first hours and days following adequate procedures. The Inter-American Court found that Guatemala bears international responsibility, because (i) in the period leading up to Claudina’s disappearance, despite the well-known situation of violence against women, the state did not implement the measures necessary to ensure that the authorities responsible for receiving allegations of missing persons persons with the ability and sensitivity to understand the seriousness of such statements, as well as the determination and preparedness for immediate and effective action, (ii) having received the message that Claudina Velazquez is in danger, the authorities did not act with the thoroughness necessary to adequately prevent bodily harm and death, as they did not act as reasonably expected, given the context of the case and the statement they received. For example, the authorities initially refused to accept the statement, saying that parents had to wait 24 hours to report her disappearance, they did not collect data and descriptions that would allow her to be identified, did not take measures to systematically, strategically, comprehensively and coordinately search together with other state bodies that would cover places where she could be, and they did not interview persons who could have information about her whereabouts.
The case committed a violation (adopted unanimously).
(c) Articles 8 (1) (right to a fair trial), 25 (right to judicial protection) and 24 (right to equal protection) of the ACHR, in conjunction with Articles 1 (1) and 2 of the said Convention and Article 7 of the Belem-do Convention -Couple. The Inter-American Court ruled that the criminal case should have been instituted upon receipt of a statement that Claudine disappeared, however, it was instituted only upon the discovery of her body. In addition, the Inter-American Court concluded that the state did not conduct the investigation with due care, as there were a number of violations in collecting evidence at the crime scene and during the next stages of the investigation. He also ruled that for 10 years the investigative actions were belated and repeated without a clear goal, which violated the family’s right to access to justice within a reasonable time.
Furthermore, given all the signs that Claudine had suffered sexual violence, the Court concluded that the State had violated its obligation to investigate her death as a possible expression of violence against women and with a gender perspective. In addition, he found that the State authorities had not conducted the investigation thoroughly and scrupulously because of gender stereotypes and prejudices regarding her clothes and where she was found, which made it possible to consider the victim as a person whose death did not merit investigation, or to consider that she herself can be blamed for the attack on her. In addition, the qualification of a crime as a possible “crime of passion” was based on a stereotype that justified the actions of the aggressor. All this constituted violence against women and a form of gender iscrimination in access to justice.
The case committed a violation (adopted unanimously).
(d) Articles 5 (1) (right to security of person) and 11 (right to honor and dignity) in relation to article 1 (1) of the ACCHR. The Inter-American Court determined that the method of the investigation, in particular the invasion of the prosecutors at the applicants ’daughter's farewell ceremony, to receive her fingerprints, that she was identified as a person whose death did not merit investigation, and that the violations and shortcomings that accompanied the entire investigation, in which Claudina's father played the most active role, violated the family's right to personal integrity. The Inter-American court also indicated that when prosecutors arrived at the farewell ceremony to get Claudina’s fingerprints and threatened her parents with prosecution for obstructing justice if they refused, they intruded in an intimate and painful moment with the aim of once again manipulating the remains of Claudina although this procedure should have been carried out before the body was handed over to the family. Thus, they violated the rights of the family to honor and dignity.
The case committed a violation (adopted unanimously).
(e) Article 11 (right to privacy) of the ACHR. Given that the Inter-American Court of Justice has already ruled on the obligation of the state to investigate the signs that Claudina Velazquez may have been sexually assaulted, there is no need to consider the alleged violation of her right to privacy.
There is no need for a decision (unanimously).
(f) Articles 13 (freedom of thought and expression) and 22 (freedom of movement and choice of residence) of the ACHR. The Inter-American court ruled that the alleged violations of these rights have already been duly examined in the section of the ruling regarding access to justice, so there is no need to examine this issue.
There is no need for a decision (rendered by six votes in favor and one against).
(g) Compensation. The Inter-American Court concluded that this ruling is in itself a form of compensation, and ordered the state, among other measures: (i) to initiate, conduct and properly and with the necessary thoroughness of the criminal investigation and proceedings in order to establish, prosecute and, if applicable, the punishment of those responsible for causing Claudine bodily harm and death, as well as evaluate the actions of public servants who participated in the investigation of the case, in accordance with relevant disciplinary standards; (ii) provide free medical and psychological or psychiatric care to victims of disorders that require this; (iii) publish the decree and an official extract from it; (iv) apologize publicly; (v) introduce the ongoing educational program on the need to eliminate gender discrimination, gender stereotypes and violence against women in Guatemala in the curriculum of the national educational system; (vi) develop a schedule for strengthening the national forensic institute; (vii) fully implement the “specialized courts” and specialized prosecutors throughout the Republic of Guatemala; (viii) introduce ongoing programs and courses for judges, prosecutors and national civilian police to investigate the killing of women and standards for the prevention, punishment and eradication of the killing of women, as well as train them in the proper application of international law and the case-law of the Inter-American Court in this area; (ix) approve a strategy, system, mechanism or national program to ensure the effective and immediate search for disappeared women; (x) to pay compensation for pecuniary and non-pecuniary damage, as well as legal costs and expenses.