Jaimes v. Mexico. Opinions of the Committee on the Elimination of Discrimination against Women dated October 24, 2022. Message No. 153/2020.
In 2020, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Mexico.
The Committee recognized that, although responsibility for the enforced disappearance of Ms. F. (the author's daughter) could not be attributed to the State party, such responsibility could be attributed to it because it had not taken due care to prevent or suppress this crime in accordance with the requirements of international law. The Committee also concluded that the lack of gender mainstreaming in the Federal Law on Combating Organized Crime had become an obstacle to conducting a gender-sensitive investigation into the enforced disappearance of the author's daughter and indicated a violation of articles 2 and 15 of the Convention on the Elimination of All Forms of Discrimination against Women.
As could be seen from the text of the Opinions, the author of the communication (the mother of the abducted daughter) claimed that the State party violated articles 1, 2 of the Convention, considered in conjunction with General Recommendations No. 19, 28 and 35, since the authorities of the State party did not immediately take appropriate action to search for her daughter. This inaction led to her daughter becoming a victim of gender-based violence, torture and disappearance, and was in violation of the Convention on the Elimination of All Forms of Discrimination against Women (paragraph 3.1 of the Opinions).
The Committee's legal position: In accordance with article 4, paragraph 1, of the Optional Protocol, the Committee is not entitled to consider a communication until it is satisfied that all available domestic remedies have been exhausted, or that the application of such remedies is unreasonably prolonged or unlikely to bring the expected result (paragraph 6.3 of the Opinions).
The Committee recalls that, in accordance with its general recommendation No. 28 (2010) on the basic obligations of States parties under article 2 of the Convention, States parties are obliged to exercise due responsibility to prevent, investigate, prosecute and punish such acts of gender-based violence (paragraph 19). If discrimination against women involves violations of other human rights, in particular the right to life and physical integrity in cases of, for example, domestic and other forms of violence, then States parties are obliged to initiate criminal proceedings, bring violators to justice and impose appropriate criminal penalties (paragraph 34 of the General Recommendation) (paragraph 7.2 of the Opinions).
The Committee also recalls its general recommendation No. 19 (1992) on violence against women and General recommendation No. 35 (2017) on gender-based violence against women, intended to update General Recommendation No. 19, which address whether States parties can be held accountable for the conduct of non-State actors, and which confirm that "within the meaning of the Convention, discrimination is not limited to actions that are committed by or on behalf of Governments", and that "in accordance with the general norms of international law and the provisions of specific human rights covenants, States may also be held responsible for acts committed by private individuals if these States do not take due care to prevent violations of rights or investigate acts of violence, punish perpetrators and pay compensation." In addition, in the Committee's opinion, impunity for these crimes significantly contributes to strengthening the culture of acceptance of the most extreme forms of gender-based violence against women in society, which contributes to the further spread of these forms of violence. Such passivity and inaction constitute violations of human rights (paragraph 7.3 of the Opinion).
The Committee notes that gender-based violence against women constitutes discrimination, as defined in article 1 of the Convention, and takes a variety of forms, including actions or omissions that are either intentional or highly likely to result in the death of women or cause suffering or harm to women physically, mentally, of a sexual or economic nature, as well as a form of threat to commit such actions or omissions, harassment, coercion and arbitrary infringement of freedom. In this context, the Committee recalls that the disappearance of women is one of the most severe manifestations of gender-based violence, that is, violence directed against a woman because she is a woman, or violence that disproportionately affects women. The Committee emphasizes that missing women suffer particularly severely because of their gender identity and that in these circumstances they are disproportionately exposed to sexual and other forms of gender-based violence (paragraph 7.4 of the Opinion).
The Committee considers that, in accordance with the obligation of States parties under article 2 of the Convention to take due care in order to prevent and investigate cases of disappearance of women, as well as to prosecute and punish perpetrators, immediate, prompt and gender-sensitive search measures are required, ensuring that gender aspects are taken into account at all stages of the search, and with the involvement of appropriately trained staff, including women (paragraph 7.5 of the Opinion).
The Committee's assessment of the factual circumstances of the case: the author's allegation of a violation of her daughter's rights under articles 1, 2 "c" - "f" of the Convention, considered in conjunction with General Recommendations No. 19, 28 and 35, has been noted in the sense that the authorities did not take immediate and thorough action to search for the author's daughter since her disappearance in October 2012, as well as to prevent serious acts of gender-based violence and protect her from these acts (paragraph 7.2 of the Opinions).
The Committee has taken into account the State party's allegations that it has conducted an investigation and search for the author's daughter in accordance with its obligations under the Convention since 2015. However, the Committee noted that the State party had not provided information on what actions it had taken before 2015, in particular on what immediate measures the authorities had taken after receiving a report on the disappearance of the author's daughter. Based on the information contained in the case file, the Committee noted that the Attorney General's Office of the State of Guerrero, which accepted the first report on the disappearance of the author's daughter, knew that Ms. Flores Roman had allegedly been abducted by a group of armed men who were looking specifically for her. The Committee stated that in this situation, the authorities, in particular, did not immediately accept a statement from the author and her son's wife, who was released by the kidnappers, and this was necessary in order to establish the whereabouts of Ms. Flores Roman, investigate the version that serious acts of gender-based violence had been committed against her, and prevent the commission of such acts acts (paragraph 7.5 of Opinions).
In addition, in the Committee's opinion, the case contained information suggesting that the orders, connivance and inaction of the State party in connection with the disappearance of the author's daughter were beneficial to persons associated with criminal organizations, and these persons enjoyed patronage. In view of the above, and taking into account the pattern of disappearances of women in the State of Guerrero and widespread impunity, the Committee considered that the State party was responsible in this case of alleged enforced disappearance. Thus, the Committee noted: Although responsibility for the enforced disappearance of Ms. Flores Roman cannot at first glance be attributed to the State party, such responsibility may be attributed to it because it did not take due care to prevent or suppress this crime in accordance with the requirements of international law (paragraph 7.6 of the Opinions).
The Committee concluded that the State party had violated Ms. Flores Roman's rights under paragraphs "c" to "e" of article 2 of the Convention, read in conjunction with its article 1 and in the light of General recommendations Nos. 19, 28 and 35 (paragraph 7.7 of the Opinions).
The Committee took note of the author's claim that her daughter's rights under articles 1, 2 "b"- "f", 5 "a" and 15 of the Convention, considered in conjunction with General Recommendations No. 19, 28, 33 and 35, had been violated, as evidenced by the following facts: a) the decision not to investigate what happened as acts of gender-based violence; b) a biased approach to the investigation; c) the absence of norms in criminal law guaranteeing the investigation of crimes of organized criminal groups taking into account gender aspects; and (d) Systematic inaction and ineffectiveness in the investigation of the disappearance of the author's daughter. The Committee also took note of the ruling of the Supreme Court of the country mentioned by the State party that all courts should administer justice with a gender perspective and that judges should combat biased stereotypes about gender roles contained in legislation and take into account cases of gender-based violence, gender discrimination or gender vulnerability in order to ensure effective and equal access to justice (paragraph 7.8 of the Opinion).
The Committee noted that the Office of the Special Prosecutor had stated that it had no jurisdiction to investigate the enforced disappearance of Ms. Flores Roman because the events under investigation could not be considered acts of violence against a woman based on her gender or gender-related status. The Committee also noted that the Office of the Special Prosecutor had referred the investigation to the Special Directorate of the Prosecutor General's Office in connection with the alleged involvement of organized criminal groups, but had not made recommendations on coordination or on the need to continue the investigation from a gender perspective. Although the Special Directorate of the Prosecutor General's Office was the competent authority in accordance with the legislative norms of the State party, the Committee, while refraining from evaluating the statement of the Office of the Special Prosecutor that it lacked appropriate competence, considered that the assessment of the facts by this Office did not correspond to the definition of gender-based violence against women under the Convention, where such violence is understood as violence directed at against a woman for the reason that she is a woman, or as violence affecting women disproportionately. The Committee stated that this assessment did not take into account the history of domestic violence and other forms of gender-based violence against women suffered by Ms. Flores Roman, as well as the general context of the disappearances of women in the State party. With regard to the author's claim that there was no gender-oriented approach in the investigation conducted by the Special Directorate of the Prosecutor General's Office, the Committee noted that, as recognized by the State party, this structure considered the application late and itself referred the case to the Special Directorate for Human Rights, Crime Prevention and Public Works for the determination of jurisdiction. The Committee stated that the gender-sensitive search for women who have been subjected to enforced disappearance is the responsibility of all structures responsible for the search, and in this case this responsibility could not be assigned only to the Office of the Special Prosecutor simply because it specializes in crimes related to violence against women (paragraph 7.9 of the Opinion).
With regard to the author's claim that there are no provisions in the Federal Law on Combating Organized Crime providing for a differentiated approach in cases where the victims are women, the Committee took note of the above-mentioned communication from the State party that the Supreme Court of the country, guided by the decision of the Inter-American Court of Human Rights in the case "Gonzalez and Others v. Mexico", adopted a resolution according to which all jurisdictional bodies must take into account gender aspects in their work. The Committee also noted that the State party has standards governing the search for missing women with a gender perspective, such as the White Protocol and various provisions of both the 2017 General Law on Enforced Disappearances and Cases of Disappearance as a Result of Actions of Individuals and the National Missing Persons Search System. The Committee pointed out that in the present case, several amparo orders had been issued ordering the Prosecutor's Office to carry out investigative measures and investigate the enforced disappearance of the author's daughter in the light of these standards. The Committee noted that the National Human Rights Commission had also reported shortcomings in the search and investigation of the enforced disappearance of the author's daughter. However, the Committee drew attention to the fact that the State party had not provided information on the regulatory gap identified by the author in the Federal Law on Combating Organized Crime. The Committee concluded that the lack of gender mainstreaming in the Federal Law on Combating Organized Crime had become an obstacle to conducting a gender-sensitive investigation into the enforced disappearance of the author's daughter and indicated a violation of articles 2 "f" and 15 of the Convention on the Elimination of All Forms of Discrimination against Women (paragraph 7.10 of the Opinion).
The Committee noted that despite the existence of a regulatory framework in the State party guaranteeing the integration of a gender perspective in the conduct of investigative activities and investigations of enforced disappearances, and the various orders on the application of the amparo procedure in this case prescribing the application of these standards, as well as the recommendations of the National Human Rights Commission, however, all these prescriptions proved insufficient to eliminate violations of the rights of the author's daughter (paragraph 7.11 of the Opinion).
The Committee's conclusions: The facts presented indicated a violation of Ms. Flores Roman's rights under articles 1, 2, 5 and 15 of the Convention in the light of General Recommendations No. 19, 28, 33 and 35.