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Inter-American Court of Human Rights
On 12 August 2005 Claudina Isabel Velásquez Paiz, a 19-year-old student, went to a party. At about 11:45 pm she contacted her family by phone for the last time – after which they lost contact with her. Two hours later, Claudina’s parents were informed that their daughter might be in danger. They called the police, who came to their house. Upon arrival, the police told Claudina’s family that they would patrol the area, but, despite the high rates of femicide in Guatemala, they had to wait at least 24 hours to report Claudina’s disappearance. With the help of family and friends, Claudina’s parents continued their search throughout the night. Around 5 am, they went to the police station to report her disappearance but once again were told to wait– It was 8:30 am when the police finally took formal notice of Claudina’s disappearance.
Information provided by an anonymous caller helped firemen and police find a woman’s body – an examination revealed injuries including a bullet wound on the forehead, as well as signs of sexual violence. Claudina’s parents were asked to visit the morgue to identify the body. After confirming that the unidentified body was Claudina, her parents were told they could recover the body around noon. At the funeral home where Claudina’s body was being veiled, police arrived to take her fingerprints. Claudina’s parents objected and were threatened with obstruction of justice.
There is no evidence that the Public Ministry or the police had undertaken any action following information of Claudina’s disappearance – except for the report made at 8.30 am on 13 August 2005. No criminal investigation was initiated until after the finding of the body.
What was the decision?
The Court decided that Guatemala was responsible for violating Claudia and her family’s human rights, specifically:
- American Convention on Human Rights
- Article 4: Right to life
- Article 5: Right to humane treatment
- Article 8: Right to a fair trial
- Article 11: Right to privacy
- Article 25: Right to judicial protection
- Belém do Pará Convention
- Article 7: State obligation to prevent, punish and eradicate violence against women
Rights to life and personal integrity, in conjunction with Articles 1.1 and of the American Convention and Article 7 of the Belém do Pará Convention
The Court reiterated that a state shall not be responsible for any violation of human rights committed by individuals within its territory. In order to establish a breach of the duty to prevent violations of the rights to life and personal integrity, the Court should verify that:
- The state authorities knew, or should have known, about the existence of a real and imminent risk to the life and/or personal integrity of an individual or group of individuals
- Such authorities failed to take the necessary reasonable measures within its powers which might have been expected to prevent or avoid that risk
The Court explained that in a context of increased level of violence against women, whenever a report is made informing of a missing woman a duty of strict due diligence arises from the very first hours of the disappearance. This duty calls for the police, prosecutors and the judiciary to take immediate action, including conducting exhaustive search activities. Further, it requires that appropriate proceedings are followed in order to ensure effective investigations are carried out from the first hours after the disappearance. The authorities must presume that the missing person is still alive until they obtain evidence to the contrary and have conducted the necessary steps in order to be certain of the result.
Based on the above standards, the Court analysed the duty of the state to prevent a violation of human rights in two different instances: 1. Prior to Claudina’s disappearance; 2. The time between Claudina’s disappearance and the discovery of her body. In the first instance, the Court evaluated the existing legal and protective framework prior to the disappearance of Claudina – giving specific attention to the state’s general fulfilment of the duty to prevent the murder and disappearances of women. By August 2005, when Claudina was killed, the state had implemented measures to address the issue of violence against women. However, several international and national organisations, and one of the expert witnesses involved in the case agreed that these measures were insufficient due to lack of resources allocated, lack of coordination between the various institutions and the lack of a comprehensive protection strategy.
In the second instance, the Court focused on the state’s duty to prevent specific violations of the rights to life and integrity. Due to the information provided by her parents to the police, the Court determined that the state was aware of the real and imminent risk Claudina faced. However, the police did not take action to collect data or descriptions that would allow for Claudina’s identification. They did not undertake a comprehensive, strategic and coordinated search with other state authorities, did not visit places where it would have been likely to find her, nor did they interview people who might have information about her whereabouts. As such, the response from the state authorities was clearly insufficient.
The Court found that the state did not prove that it had implemented the necessary measures, in accordance with Article 2 of the American Convention and Article 7 of the Belém do Pará Convention to ensure that officers responsible of dealing with missing women reports have the capacity and sensitivity to understand the seriousness of the reports or the training to act immediately and effectively. The Court concluded that the Guatemalan authorities did not act with the due diligence required to adequately prevent the assault and death of Claudina and did not act as reasonably expected according to the context of the case and the circumstances of the report. The Court concluded that the state violated its duty to guarantee the free and full exercise of the rights to life and personal integrity recognised in Articles 4.1 and 5.1 of the American Convention, in relation to the general obligation of security provided for in Article 1.1 and in relation with the obligation to adopt provisions of national law referred to in Article 2 thereof, as well as with the obligations established in Article 7 of the Belém do Pará Convention.
Rights to a fair trial, judicial protection, and equality before the law, in conjunction with Articles 1.1 and 2 of the American Convention and Article 7 of the Belém do Pará Convention
In considering the state’s actions with regard to the rights listed above, the Court first noted that the criminal investigation did not start from the report about the disappearance of Claudina – rather, it began at the moment her body was found. Subsequently, the Court found several irregularities in the investigation from the discovery of the body of the victim to the subsequent action by state officials, namely:
- Lack of a police report regarding the discovery of the body
- Lack of research of evidence regarding the handling of the body
- Improper handling of the crime scene
- Irregularities in the documentation and preservation of evidence
- Lack of collection and preservation of evidence
- Irregularities in the practice of the necropsy
- Irregularities in determining the time of death
- Reference to the victim as “XX” in reports produced after her identification
- Irregularities in the forensic medical examination and its respective report.
In this regard, the Court established that these irregularities during the first steps of the investigation could not be remedied by late and insufficient probative measures that the state tried to promote. The Court established that due diligence and rigor in the investigation were affected.
The Court also analysed the logical lines of investigation and practice in the collection of evidence, and if the time elapsed without a conclusion could be considered “reasonable”. More than 10 years had passed since the facts of the case, yet the state had not determined what happened to Claudina. The investigative proceedings had been slow and repetitive, while other measures had been prolonged over time without providing any concrete results. Therefore, the lack of due diligence in this case had affected the right of access to justice for the family of Claudina Velásquez, and was a violation of their judicial guarantees under the American Convention.
Furthermore, it was determined that gender stereotypes were present and echoed by various state agents in charge of the investigation. Evidence supporting this determination included:
- The crime scene had not been analysed properly due to gendered assumptions about Claudina. After visiting the victim’s house a few days after her death, the prosecutor assigned to the case noted that the police had made assumptions about Claudina due to:
- The place where her body appeared
- The fact that she was wearing a choke and a navel piercing
- She was wearing flips flops
The Court recognised the role that gender stereotypes have played in cases of violence against women – where victims who were believed to have gang affiliation, to be engaged in sex work, or were considered “a nobody” were not important enough to warrant police investigation. The Court rejected any state practice that allowed violence against women to be justified by applying discretionary criteria based on the background and/or behaviour of the victim. The Court stated that gender stereotypes are incompatible with the international law of human rights and that the state should take the necessary steps to eradicate them.
- In a report prepared by the prosecutor, the murderer was said to be “passionate possibly under the influence of alcohol”. To this point, the Court took into account the expert evidence of Christine Chinkin which emphasised that the concept of a “crime of passion” is part of a gender stereotype which justifies violence against women – whereby the “passionate” action seems to justify the conduct of the aggressor. This stereotype blames the victim and supports the violent action of the aggressor.
- Evidence was not preserved properly during the investigation. For at least a period of 10 days there was confusion about the nature of a package found near the Claudina’s body. The item was originally identified as a condom wrapper; however, further investigations revealed that it actually was from a soup container. This misidentification is further evidence of the discriminatory assumptions that officers held about Claudina.
- More than three years passed before a forensic psychiatric investigation was conducted. The ‘expert’ made statements aimed at discrediting the victim, blaming her for her lifestyle as well as her personal and sexual relations. The Court noted that these patterns and attitudes were not isolated or exclusive to the authorities leading the investigation around the death of Claudina; rather, they reflected a general tendency amongst prosecutors to discredit victims and shift the blame to them by pointing to factors such as their lifestyle or clothing.
Despite the prejudicial investigation, the Court determined it was possible to assume Claudina’s violent death was a manifestation of gender-based violence (therefore prompting the state to act under Article 7 of the Belém do Pará Convention), considering:
- Evidence of a possible rape: her bra and belt had been removed, the zipper of her trousers was undone, her blouse was inside out and semen was found in her vagina
- The type of injuries found on her body
- The increased level of violence and cruelty against women in Guatemala
Due to prejudice and discriminatory stereotypes, state authorities failed to conduct the investigation from a gendered perspective – despite being aware of the evidence that pointed to the possibility of gender-based violence. This, in turn, also led to the case not being investigated diligently nor in a rigorous manner. Therefore, the state had violated Claudina’s rights to a fair trial and the judicial protection, recognised in Articles 8.1 and 25.1 of the American Convention on Human Rights, and the right to equality before the law enshrined in Article 24 of the Convention, in relation to the general obligations contained in Articles 1.1 and 2 thereof, and Article 7 of the Belém do Pará Convention.
Rights of personal integrity and protection of honor and dignity of the family of Claudina Velásquez
The Court concluded that the state violated the personal integrity of Claudina’s family by the form in which the investigation was conducted. In particular, qualifying Claudina as a person whose death did not deserve to be investigated, in addition to the irregularities and deficiencies throughout the investigative process, subjected Claudina’s family to further suffering and re-victimisation. This constitutes a violation of Article 5.1 of the American Convention, in conjunction with Article 1.1.
The Court also determined that the care of a person’s remains and respect for the family of that person is a form of observance of the right to human dignity. In this case, Public Ministry officials arrived at Claudina’s memorial service and demanded access to her body. After threatening to arrest Claudina’s parents for obstruction of justice, her coffin was removed from the memorial service and the officials took fingerprints and nail clippings. In this instance, the state had interrupted the family’s grieving and tribute to Claudina, violating their rights to honour and recognition of their dignity. Therefore, the state had also acted in violation of Article 11 of the American Convention , in conjunction with Article 1.1 with regard to Claudina’s family.
As a result of their conclusions, the Court ordered that Guatemala (para. 221):
- Effectively conduct an investigation and open criminal proceedings to identify, prosecute and punish those responsible for the crimes against Claudina Isabel Velásquez Paiz. Also, in accordance with the relevant disciplinary rules, the state should examine possible procedural and investigative irregularities and if necessary, punish the conduct of public servants involved in the case
- Provide specialised medical and psychological or psychiatric treatment to victims who request it, through its health institutions and free of charge
- Publish the judgment and its official summary
- Perform an act of public apology
- Incorporate into the curriculum of the National Educational System program continuing education on the need to eradicate gender discrimination, gender stereotypes and violence against women in Guatemala
- Develop a plan to strengthen the National Institute of Forensic Sciences
- Implement the full functioning of the “specialised courts” throughout Guatemala, as well as the specialised prosecution
- Implement ongoing programs and courses for public officials regarding acts of murder of women, prevention standards, eventually punishment and eradication of killings of women and train them on the proper application of international law and jurisprudence of the Court on the matter
- Adopt a strategy, system, mechanism or national program, through legislative or another character, in order to achieve effective and immediate search for missing women
- Pay the amounts established in the judgment as compensation for material and immaterial damages, and reimbursement of costs and expenses
Learning from other institutions
Throughout the text of the case document, Claudina and her family’s story was supported by what other institutions and authorities had said about violence against women, gender-based discrimination and human rights. Some of the references to these institutions and authorities included (numbers correspond to paragraphs within the case document):
- Convention on the Elimination of all forms of Discrimination against Women: 175
- European Court of Human Rights: 101, 103, 109
- General Recommendation No. 19: 175
- Gonzalez et al v. Mexico: 19, 45, 108, 109, 146, 148, 150, 152-54, 175, 180, 192, 247, 266
- Velasquez Rodriguez v. Honduras: 24, 30, 32, 106-7, 142-3, 221-2, 224
- Expert witness, Professor Christine Chinkin: 180-182, 196
This judgment is noteworthy in that it casts further light on what specific steps are required of a state to satisfy its due diligence obligations within the particular context of violence against women. It thus builds on the Court’s jurisprudence established in the 1988 Velasquez Rodriguez case.