Photo: The victim, Petita Albarracín, holds a photo of her daughter, Paola Guzmán Albarracín
In the Judgment of the Case of Guzmán Albarracín et al. v. Ecuador, of June 24, 2020, the Inter-American Court of Human Rights found the State of Ecuador responsible for the sexual violence suffered by the adolescent Paola del Rosario Guzmán Albarracín in the state educational system, committed by the Assistant Principal of the public school she attended and tolerated by the educational institution, which was related to the girl's suicide. Similarly, the Court determined that the State was responsible for the violation of the right to personal integrity, as well as judicial guarantees and the right to judicial protection, in relation to the right to equality before the law, to the detriment of Paola’s mother and sister, Petita Paulina Albarracín Albán and Denisse Selena Guzmán Albarracín. This was the first case heard by the Inter-American Court about sexual violence against a girl in education.
In 2001, when Paola was 14 years old and in the second year of basic secondary education, she began to have problems with some subjects and the Assistant Principal of the school offered to let her pass, on the condition that she have sexual relations with him. There are, on record, testimonies and indications about acts of a sexual nature carried out by the Assistant Principal with Paola, as well as statements that indicate that school personnel knew of the relationship between them and that she had not been the only student with whom he had close relationships of this nature. On December 11, 2002, the Inspector of Paola's course sent a summons to her mother, to report to school the next day. On Thursday, December 12, 2002, the same day of the summons and two days after her 16th birthday, between 10:30 and 11:00 a.m., Paola ingested pills containing white phosphorus. She then went to school and told her classmates what she had done. The school transferred her to the infirmary, where she was urged to pray. Her mother was contacted after noon and managed to get to school about 30 minutes later. She took her daughter in a taxi to a hospital, and later to a clinic. On December 13, 2002, Paola died. The teenager left three letters, and in one addressed to the Assistant Principal, she expressed that she felt "cheated" by him and that she decided to take poison because she could not bear what she was suffering.
In the Judgment, the Court concluded that there was not only sexual harassment, but also sexual intercourse, and that the behavior, which lasted over time, led to a continuity or repetition of serious acts of sexual violence. It outlined that the rights to personal integrity and a private life entail freedoms, among which is sexual freedom and control of one's own body, which can be exercised by adolescents as they develop the capacity and maturity to do so.
Accordingly, the Court evaluated the injury to Paola's rights, considering her right to a life free of sexual violence in the educational environment, and explained that, in the circumstances of this case, there was an abuse of a relationship of power and trust , as the sexual acts were committed by a person who had a duty of care towards Paola within the school environment, framed by a situation of vulnerability. It therefore noted that, as an academic authority, the Assistant Principal had a position of superiority and power in relation to the girl in the school environment, which he took advantage of, as the sexual acts began as a condition of him helping her to pass the school year. In this context, harmful gender stereotypes, tending to blame the victim and considering her "provocative", facilitated the exercise of power and the use of the relationship of trust to normalize acts that were improper and contrary to the adolescent’s rights. The Court noted that the Assistant Principal was not only an adult man who had sexual relations with a girl but, crucially, also had a role of power and duty of care in relation to her. This is evident in an obvious way, since his position as an academic authority of the school that Paola Guzmán attended, generated a manifestly unequal relationship, in which he enjoyed a situation of superiority. Not only should the Assistant Principal have respected the adolescent‘s rights, but also, by virtue of his role as an educator, he should have provided guidance and education in accordance with her rights and in such a way that they were assured.
In addition, the Court noted that Paola's vulnerability, as an adolescent girl, was enhanced by the absence of effective actions to prevent sexual violence in the educational sphere and institutional tolerance, given that, despite the fact that there are indications that the school staff knew about the aforementioned situation, it was hidden, Paola was blamed and stigmatized and, after her death, an attempt was made to ensure the impunity of the Assistant Principal. In addition, the Court highlighted that the vulnerability indicated was related to the lack of education on sexual and reproductive rights, given that Paola did not have an education that would allow her to understand the sexual violence involved in the acts she suffered. On the other hand, the Court observed that the violence suffered by Paola entailed a form of intersectional discrimination, which combined different factors of vulnerability and risk of discrimination, such as age and gender, and that it occurred in an institutional setting.
Therefore, the Court concluded that Ecuador did not observe its obligations to provide measures of protection for Paola as a child and to abstain from any action or practice of violence against women, as well as to ensure that the authorities, their officials, staff and agents and institutions behave in accordance with this obligation, and that they did not act diligently to prevent this violence. The State failed to comply with its duty to respect the rights indicated, as well as its duty to guarantee them without discrimination.
In addition, the Court accepted the State’s acknowledgment of responsibility with respect to the lack of State diligence in the administrative and judicial processes initiated as a result of the events. In addition, it determined that there was a violation of the duty to carry out the proceedings in a reasonable time and that it was investigated without a gender perspective, since determinations during the criminal process, and impacting on it, were biased by harmful gender stereotypes.
Photo: Public Hearing of the Case of Guzmán Albarracín et al. v. Ecuador at the Inter-American Court of Human Rights on January 28, 2020
In its Judgment, the Court ordered eight measures of reparation. As guarantees of non-repetition, it ordered that, within one year, the State should identify additional measures to those it was already implementing to correct and remedy deficiencies identified in the Judgment with respect to:
To this end, the Court indicated that, if deemed appropriate, the State could request assistance or advice from organizations such as the Inter-American Commission of Women or the Committee of Experts of the Follow-up Mechanism to the Convention of Belém do Pará, and highlighted the importance of children’s participation in the development of public prevention policies.
Furthermore, the Court established that the State should:
In its Monitoring of Compliance order of September 23, 2021, the Inter-American Court valued the information presented by the parties regarding seven of the eight reparation measures ordered in this case and indicated that in a subsequent resolution it will rule on the guarantee of non-repetition related to identifying and adopting measures to deal with sexual violence in education.
The Court confirmed that on December 9, 2020, the public act of recognition of the State's international responsibility was held. In this regard, it valued highly that said act had been carried out within the term granted in the Judgment and that it had the participation of high-level State authorities, including the President of Ecuador, who “acknowledged responsibility […] and made a public apology in name of the Ecuadorian State ”, in the presence of the victim Petita Paulina Albarracín Albán.
Photo: In the act of public recognition of responsibility, the victim Petita Albarracín and representatives of CEPAM Ecuador next to a photograph of Paola.
The event was widely publicized on television, radio, press and social networks, and important parts were broadcast on the national network, during prime time.
Photo: The victim Petita Albarracín during the act of Public Apology of the State of Ecuador
Furthermore, during the event, and as indicated in the Judgment, Mrs. Petita Paulina Albarracín Albán was presented with the posthumous high school diploma for her daughter, Paola Guzmán Albarracín.
“Today I accept the Diploma on behalf of my Paola because it was one of her dreams: to graduate from high school to continue studying. And with this diploma, everything that she lived through and everything that the system denied her is acknowledged… ”, said Ms. Petita Albarracín.
“It was proven that my daughter was the victim. With this, my family has peace. Although my Paola is dead, I cannot bring her back, but it is the last thing we expected ”, added Petita Albarracín in her speech at the event.1
Photo: President of Ecuador, Lenin Moreno, at the signing of the Decree declaring the “Official day against sexual violence in the classroom”.
In addition, during the event, the President of Ecuador signed the Decree declaring August 14 each year as the "Official Day Against Sexual Violence in the Classroom", which seeks to recognize and raise awareness in the of the National Educational System’s educational community, state, and society on the seriousness of sexual violence against children and adolescents, disseminate and promote the right of children and adolescents to a life free of sexual violence, and develop concrete actions to prevent, detect and punish acts of sexual violence against children and adolescents in education.
The Decree orders the Ministry of Education and the Human Rights Secretariat "to disseminate and promote the rights of children and adolescents, and to develop awareness-raising actions on the importance of eradicating sexual violence against children and adolescents in education”.
The Court assessed positively the actions carried out by the State, as well as their speed, especially taking into account their symbolic importance in order to contribute to repairing the suffering experienced by the victims and to avoid repetition of violations of this kind. The Court concluded that Ecuador had complied with the reparations related to: holding a public act of acknowledgment of international responsibility; posthumous award of the High School Diploma to Paola del Rosario Guzmán Albarracín; and declaring an official day to combat sexual violence in the classroom.
Photo: The State published the Judgment on its web page and social networks.
Similarly, the Court concluded that Ecuador had complied with three other measures of reparation, namely: publication and dissemination of the Judgment, payment of compensation for pecuniary and non-pecuniary damage to Petita Paulina Albarracín Albán and Denisse Selena Guzmán Albarracín, and reimbursement of costs and expenses to the victims' representatives, the CEPAM-Guayaquil and the Center for Reproductive Rights organizations.
The Court assessed positively that, in the year after the Judgment, Ecuador fully complied with six reparation measures. With respect to reparation related to providing psychological and/or psychiatric treatment for the victims, the State has shown its willingness to begin its provision, taking into account the needs and requests of the victims and, complementary to measures ordered in the Judgment, even offering primary health care through home visits.
1Statements of Petita Albarracín in the Public Act https://twitter.com/ComunicacionEc/status/1336759082775175171?s=20
Photographs:
https://www.elcomercio.com/actualidad/seguridad/organizaciones-corte-idh-paola-guzman.html
https://twitter.com/DDHH_Ec/status/1426275528143745024
Videos:
Monitoring Compliance with Judgment. Further information on the most recent orders on monitoring compliance with judgment in this case is available here.
In the Judgment in the Case of Rosendo Cantú et al. v. Mexico of August 31, 2010, the Inter-American Court of Human Rights found the Mexican State responsible for the violation of the rights to personal integrity, privacy, judicial guarantees and judicial protection, together with the rights of the child of Mrs. Rosendo Cantú, owing to the rape and torture of which she was a victim. In addition, it found the State responsible for the violation of the right to personal integrity of Yenys Bernardino Rosendo, Mrs. Rosendo Cantú’s daughter. In addition, the Court declared that Mexico had violated the rights to judicial guarantees and judicial protection in relation to the obligations to ensure rights and to adopt domestic legal provisions, among other matters because the Code of Military Justice, on which the intervention of the military jurisdiction was based, permitted the military courts to try any soldier accused of an ordinary crime for the simple fact of being on active duty.
The Court indicated that the said violations occurred in a context of significant military presence in the state of Guerrero in order to suppress illegal activities and that during this operation fundamental rights were violated. It also noted that Mrs. Rosendo Cantú was an indigenous woman, a member of the Me’paa community, living in the state of Guerrero, and that “one of the types of violence against women in that state […] was military institutional violence.” It also stressed that, in that state, many members of the population belonged to vulnerable indigenous communities.
The Court established that, on February 16, 2002, Valentina Rosendo Cantú, who was 17 years of age at the time of the facts, was in a stream near her home when eight soldiers, accompanied by a civilian who they had arrested, approached and surrounded her. Two of them questioned her, while another pointed his weapon at her, and she was assaulted and raped. The preliminary inquiries resulting from the criminal complaint filed by the victim were forwarded to the military jurisdiction.
In its Judgment, the Inter-American Court indicated that violence against women was not only a violation of human rights, but also an offense against human dignity that transcended all sectors of society and negatively affected its very foundations. In particular, rape constituted a paradigmatic form of violence against women and its consequences even transcended the person of the victim. In the case of Mrs. Rosendo Cantú, the rape violated essential values and aspects of her private life and personal integrity and even constituted an act of torture.
Among other measures of reparation, the Inter-American Court ordered Mexico to conduct the investigation into the rape of Rosendo Cantú – and also, if appropriate, the criminal proceedings – in the ordinary jurisdiction and to adopt, within a reasonable time, the pertinent legislative amendments to make article 58 of the Code of Military Justice compatible with the international standards concerning the guarantee of an ordinary judge, because that article gave the military jurisdiction competence in cases of rape on the basis that the soldiers were on active duty.
In 2014, in compliance with the decisions made in the Judgment, Mexico amended the Code of Military Justice. At the stage of Monitoring Compliance with Judgment, this was assessed by the Inter-American Court as “an important change in the domestic legal system in order to restrict the scope of the military criminal jurisdiction,” because “the current wording of the code clearly establishes that the examination of cases of presumed human rights violations committed by soldiers against civilians corresponds to the ordinary criminal jurisdiction.”
Ileana Contreras, the judge of the Seventh District Court of the state of Guerrero (Mexico), who handed down the first instance judgment in the criminal proceedings in which some of the soldiers responsible for the rape and torture of Valentina Rosendo Cantú were tried, referred to the case as an iconic event in Mexico: “this was a judgment of significant importance for justice with a gender perspective in the Americas.”
The judge emphasized that, in this case, “despite the absence of intercultural elements that would allow her access to justice, Valentina tried to report the rape to the authorities of her community; however, there were many obstacles that did not allow them access to justice at the federal level. In the absence of progress in the domestic sphere, Rosendo Cantú resorted to the inter-American system of human rights to seek justice and reparation.”
“It is as a result of the Judgment delivered by the Inter-American Court that the case – that, at one time, was being examined by the military jurisdiction in Mexico – was transferred to the civil jurisdiction, in the understanding that when the victims are civilians, it is the civil jurisdiction that should hear the case. Although the judgment of the Inter-American Court did not determine the responsibility of the soldiers who took part in the rape, it did allow the case to be reopened in the ordinary jurisdiction, obliging the State to investigate the facts. This, in itself, has been a form of reparation,” indicated Judge Contreras.
The example of Mrs. Rosendo Cantú is a wake-up call to other victims in Mexico and other countries, according to Judge Contreras, revealing that “we have rights that are guaranteed at both the national and the international level and that must be asserted by the population. One of those rights is that, when they observe the need for a special protection, judges should apply a ‘gender perspective’ that permits all the obstacles to access to justice to be overcome.”
In the Order on Monitoring Compliance with Judgment issued on March 12, 2020, the Inter-American Court welcomed the criminal judgment issued on June 1, 2018, by the Seventh District Court of Guerrero, sentencing a soldier and a sergeant for the crimes of the rape and torture of Mrs. Rosendo Cantú and imposing a sentence of 19 years, 5 months and 1 day of imprisonment. The Inter-American Court underlined that the said judgment “reflected various standards established in this Court’s consistent case law in relation to investigations with a gender perspective” and “incorporated a perspective of ethnicity to assess the victim’s statements.” In its order, the Court noted that the sentence was not yet final because two applications for amparo were pending a decision.
Alejandra Nuño, Valentina Rosendo Cantú’s representative during the merits stage of the case before the Inter-American Court, and currently professor and researcher at the Universidad ITESO in Mexico, emphasized that when victims are heard by the Inter-American Court, this is, per se, a significant opportunity to obtain reparation. “The last possibility of obtaining justice for thousands of victims on this Continent, teeming with impunity, is the inter-American system. The hearings are an opportunity for the victims themselves to provide their testimony, and this is fundamental in the process of reparation,” according to Nuño.
However, she added that, over and above the opportunity to be heard as a way of repairing the harm, “the role of the Inter-American Court in establishing structural measure of reparations is central in the search for justice, helping to change these realities of exclusion and of impunity, in which our societies are submerged.”
According to the former Judge and President of the Inter-American Court, Sergio García Ramírez, the process of integral reparation encompasses both the victims and society as a whole. “Reparation has an impact on the victims and their families, but also, as in the case of Rosendo Cantú, an impact on society as a whole, considering other similar situation that could be occurring,” pointed out García Ramírez.
“It is in this regard that the judgments of the Inter-American Court become transformative, permitting changes in domestic legislation, case law, policies and practices related to the protection of human rights,” according to the former Judge of the Court.
In this regard, Rosa María Álvarez, senior researcher at the Institute of Legal Research of the Universidad Nacional Autónoma de México (UNAM) has indicated that “this type of judgment supports cultural transformation processes and is very relevant in combatting violence and discrimination against women.” Álvarez noted that “this type of judgment of the Inter-American Court […] provides guidance to the jurisdictions that have to address violence against women perpetrated by soldiers.”
“In addition, encouraged by the example provided by the Inter-American Court with this judgment, judges have begun to deliver judgments with a gender perspective, opening up other case law horizons in Mexico,” underscored Álvarez.
García Ramírez also stressed the importance of the procedure of monitoring compliance with judgment and the relevance that both academia and civil society take part in this. “The Court is authorized to monitor compliance with its judgments. The effective and constant support of civil society and academia in the monitoring of these judgments is important,” he pointed out.
Monitoring compliance with judgment. Further information on the most recent orders on monitoring compliance with judgment in this case is available here .
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Picture: AFP
“It is important that we victims really find the concept of justice, both individually and collectively. Also, that we find reparation that not only repairs the victims, but also the whole of society,”, said Bárbara Italia Méndez Moreno, one of the eleven women victims of the Case Victims of Sexual Torture in Atenco v. Mexico.
During May 3 and 4, 2006, the municipal police of Texcoco and San Salvador de Atenco, the state police of the State of Mexico and the Federal Preventive Police, carried out operations in the municipalities of San Salvador de Atenco, Texcoco and in the Texcoco-Lechería highway to suppress demonstrations that were taking place in those municipalities. During the operations, the eleven women who were victims of the case were arrested. During their detention and while they were transferred and admitted to the “Santiaguito” Social Rehabilitation Center (“CEPRESO”), they were victims of various forms of violence, including sexual violence and, in some cases, rape.
Subsequently, several of the victims suffered degrading treatment by the first doctors to attend to them when they arrived at CEPRESO, who refused to review them, perform gynecological examinations, and report or record the rape, and even in some cases made fun of them and insulted them. After the events of May 3 and 4, 2006, various criminal investigations were initiated in relation to the acts of violence, rape, and torture suffered by the eleven women victims of the case. Specifically, criminal investigations were initiated before (i) the state jurisdiction of the State of Mexico, and (ii) the federal jurisdiction through the Special Prosecutor's Office for the Attention of Crimes Related to Acts of Violence against Women in the Country. As of the date of issuance of the Judgment of this Court, no person had been convicted of the facts.
On November 28, 2018, the Inter-American Court of Human Rights issued a Judgment, in which it declared the United Mexican States internationally responsible for the violation of the rights to personal integrity, to private life, and not to be subjected to torture; the right to personal liberty and the right to defense, and the rights to judicial guarantees and judicial protection, to the detriment of Yolanda Muñoz Diosdada, Norma Aidé Jiménez Osorio, María Patricia Romero Hernández, Mariana Selvas Gómez, Georgina Edith Rosales Gutiérrez , Ana María Velasco Rodríguez, Suhelen Gabriela Cuevas Jaramillo, Bárbara Italia Méndez Moreno, María Cristina Sánchez Hernández, Angélica Patricia Torres Linares and Claudia Hernández Martínez. Likewise, the Court found the State responsible for the violation of the right to assembly to the detriment of Norma Aidé Jiménez Osorio, Suhelen Gabriela Cuevas Jaramillo, Bárbara Italia Méndez Moreno, Angélica Patricia Torres Linares, Claudia Hernández Martínez, Mariana Selvas Gómez and Georgina Edith Rosales Gutiérrez . Finally, the Court declared the State responsible for the violation of the right to personal integrity to the detriment of the relatives of the eleven women victims of sexual torture, listed in the Judgment.
Picture: AFP
“The judgment in the Case of Atenco is paradigmatic for the region. In Mexico, it should represent a solid way so that, by compliance with the provisions there, we can reduce structural violence against women,”, said María Elisa Franco,from the UNAM Institute of Legal Research.
In its Judgment, the Court ordered Mexico various measures of reparation, as well as the reimbursement to the Victims' Legal Assistance Fund of the Inter-American Court of the amount disbursed during the processing of the case, which are currently being monitored by the Court within the framework of its Faculty of monitoring Compliance with judgments. These are:
Regarding monitoring with the reparations ordered, Bárbara Italia pointed out that the victims are “waiting to be investigated, tried and punished those responsible for these serious human rights violations.”.
Magdalena Cervantes, from the Observatory of the Inter-American Human Rights System of the UNAM Institute of Legal Research, pointed out that “the Judgments include non-repetition measures, as the Inter-American Court calls them, which seek to have an impact on society as a whole. The Judgment includes provisions that seek to transform practices and patterns that have facilitated the occurrence of human rights violations. If these measures are fulfilled, we will advance in transforming the reality that women live in our country”.
“The task of Monitoring Compliance is essential to give effect to the Judgments of the Court. It allows us to monitor how the Court's decisions are being carried out. At the national and regional level, from academia and civil society, we can influence compliance if we have information for follow-up,”, Cervantes highlighted.
The reparations ordered in this Judgment can be consulted here (Only in Spanish).
This news was produced by the Secretariat of the Inter-American Court of Human Rights, which is the only responsible for it´s content.
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"From the moment they sold our land, they treated us worse than animals. They left us on the side of the road and stripped us of all our belongings". In this way, a leader of the Sawhoyamaxa Indigenous Community recounted her suffering at the time when the State of Paraguay expelled them from the territories where the members of this community traditionally lived.
Having exhausted the search for justice within Paraguay for the vindication of its traditional lands, the Community presented its Case to the Inter-American Human Rights System.
In the Judgment of the Case of the Sawhoyamaxa Indigenous Community v. Paraguay, the Court determined the international responsibility of Paraguay for not having guaranteed the right to communal property over the traditional lands of the Sawhoyamaxa Indigenous Community, which generated numerous damages to their respective members. Therefore, the Court ordered measures of restitution of the rights of this Community. For example, one of the measures ordered implies that the State shall: "adopt all the legislative, administrative or other measures necessary to [...] formally and physically convey to the members of the Sawhoyamaxa Community their traditional lands." The restitution of rights means being able to reestablish, to the extent possible, the situation of protection of human rights that existed before a specific violation occurred.
After more than two decades since their expulsion from these lands and surviving precariously, the State of Paraguay is taking concrete measures to restore land rights to the Sawhoyamaxa Community, as evidenced by Orders on Monitoring Compliance issued by this Court in 2015 y 2019 (Only in Spanish).
The Monitoring Compliance. After issuing a Judgment that requires actions and measures of reparation by a State, the Court begins the process of monitoring compliance with said measures. This step is essential to ensure not only the true validity and effectiveness of the Inter-American System for the Protection of Human Rights, but also that the Judgments of the Court have a concrete effect of justice on victims who have had their human rights violated.
In the Case of the Sawhoyamaxa Indigenous Community, at the stage of monitoring compliance with the Judgment, the Court has verified progress in compliance with this measure, in particular, the issuance in 2014 of a law on the expropriation of traditional lands that correspond to this Community.
The Court in the territory. In 2017, the Inter-American Court, in a delegation led by Judge Patricio Pazmiño Freire and accompanied by the Team of the Monitoring Compliance with Judgment Unit of the Secretariat of the Court, made a in situ visit to the Paraguayan Chaco, where the Sawhoyamaxa Community is located, to monitor compliance with the Court's Judgment. The delegation of the Inter-American Court was made up of Judge Patricio Pazmiño Freire and three lawyers from the Monitoring Compliance with Judgment Unit of the Secretariat of the Court.
On this visit, the Inter-American Court heard leaders and members of the Community, as well as the legal representatives of the Tierraviva organization and authorities of the three Powers of Paraguay, as well as tours of different parts of the Community to verify their conditions. In addition, during the tour, the delegation of the Inter-American Court asked the questions that it considered necessary directly to the victims and to the State authorities at the scene.
These types of proceedings or in situ visits have the advantage that they allow the Court to approach the victims to receive the information directly from them and their representatives, to know the situation in which they live and the circumstances surrounding compliance with the reparation measures. Likewise, this type of visit allows explanations to be provided by the authorities and State officials in charge of executing such measures, and facilitates direct contact between victims and State authorities in order to identify obstacles, provide solutions and express specific commitments to comply to repairs.
In 2019, the Court reviewed the progress of compliance with this Community and considered it an advance that the members of it are physically occupying their lands, since before the approval of said law they made a peaceful entry to these.
Elsa Ayala, member of the Sawhoyamaxa Indigenous Community, points out “there were twenty-five years of struggle and we are in this place and that makes me very happy. Our girls and boys are happy. And why are they happy? Because they are in their place and they know it. Previously they were on the side of the road, in danger.”
In addition, after the visit carried out in 2017 and the supervision carried out by the Court in 2019, members of this Community received homes and a community development fund was established as part of the Compliance with the Inter-American Court Ruling in favor of this Community. Even though these actions have not been formally valued by the Inter-American Court, they are a sign of the commitment and efforts of Paraguay to fully comply with this Judgment.
In this Case, the State is still pending the fulfillment of fundamental measures to guarantee the rights of the Sawhoyamaxa Indigenous Community: the formal surrender of their lands, by titling them in their favor, completing the payment of the community development fund and the provision of basic goods and services necessary for their subsistence while their lands are fully restored. Orders on Monitoring Compliance of June 2015 and May 2019 (Only in Spanish).
In its 2006 Judgment, the Court reaffirmed the community property rights of some 160 Sawhoyamaxa families who had been fighting for decades to have their ancestral lands returned to them in the Chaco region. Although there are measures pending compliance, today the Sawhoyamaxa people have returned home.
This note was drafted by the Secretariat of the Inter-American Court of Human Rights, so it is the sole responsibility of the same.
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On August 30, 2010, the Inter-American Court of Human Rights declared in its Judgment that the State of Mexico was internationally responsible for violating the rights to personal integrity, dignity, privacy, judicial guarantees and judicial protection of Inés Fernandez Ortega, and also for failing to comply with the obligation to ensure, without discrimination, her right of access to justice. In addition, it declared that the State was responsible for the violation of the rights to personal integrity and privacy of Mrs. Fernandez Ortega’s husband and four children. The State was also found responsible for violating the right of Mrs. Ferna?ndez Ortega and the said family members not to be the object of arbitrary or abusive interference in the home.
The Court determined that the facts of this case occurred in the context of a significant military presence in the State of Guerrero to suppress unlawful activities such as organized crime and, as has been reported, fundamental rights were violated while performing this task. Many of the inhabitants of the State of Guerrero belong to indigenous communities and live in municipalities that suffer from extreme marginalization and poverty. Moreover, they are generally in a vulnerable situation which is reflected in different areas such as the administration of justice and also health services. The forms of violence that affect women in the State of Guerrero include “institutionalized military violence.” Mrs. Fernández Ortega, the victim in this case, is a member of the Me’phaa indigenous community and, at the time of the events, she lived in Barranca Tecoani, State of Guerrero.
Based on Mrs. Fernandez Ortega’s statements and other evidence, the Inter-American Court of Human Rights considered it proved that, on March 22, 2002, at around 3 p.m., a group of soldiers went to her home and found her with her four children. While some soldiers remained outside, three members of the Army entered the house without her consent and, while pointing their weapons at her, requested certain information. It was then that, alone and surrounded by the three armed soldiers, one of them raped her. Mrs. Fernández Ortega’s children witnessed what happened up until a few moments before she was raped. As a result of the criminal complaint filed by Mrs. Fernández Ortega, the Public Prosecution Service of the ordinary jurisdiction of the City of Allende, located in Ayutla de los Libres, opened a preliminary inquiry into the offenses of rape, forced entry, abuse of authority and other related offenses. However, when the possible participation of military personnel in the events was determined in May 2002, the investigation was forwarded to the military jurisdiction. Mrs. Fernández Ortega tried unsuccessfully to contest the submission of her case to the military jurisdiction. At the time the Judgment was delivered the investigation into the facts had still not concluded and remained in the military jurisdiction.
In its Judgment, the Inter-American Court indicated that violence against women is not only a violation of human rights but also an offense against human dignity that touches all sectors of society and negatively affects its foundations. In particular, rape constitutes a paradigmatic form of violence against women and its consequences transcend the victim herself (see Convention of Belém do Pará). In the case of Mrs. Fernández Ortega, the Court determined that the rape of which she was a victim violated essential values and aspects of her private life and her personal integrity, also constituting an act of torture.
Regarding the investigation of the facts, the Inter-American Court indicated that, when an act of violence against a woman occurs, it is particularly important that the authorities in charge of the investigation conduct this effectively and decisively, taking into account the duty of society to reject violence against women and the obligation of the State to eradicate it and to ensure that victims are able to trust the state institutions established to protect them.
The Court also considered it proved that errors and omissions were committed while investigating the incident. These included: the initial reticence to receive the victim’s complaint; the failure to provide the complainant – who did not speak Spanish at the time – with an interpreter; the absence of safe conditions and privacy when receiving the complaint; the failure to conduct immediate investigative procedures at the scene of the crime, and the failure to take immediately the necessary measures to obtain other evidence and to protect the expert evidence, which was destroyed while in the State’s custody. The Court also concluded that the impossibility of making her complaint and receiving information in her own language in the initial moments did not take into account Mrs. Ferna?ndez Ortega’s vulnerable situation owing to her ethnicity and her language, and this entailed an unjustified impairment of her right of access to justice.
With regard to the military jurisdiction’s intervention in the investigation of the facts, the Court recalled its consistent case law that the scope of military jurisdiction must be exceptional and restrictive; that it may only prosecute soldiers on active duty who have committed crimes or misdemeanors that, owing to their nature, infringe legal rights inherent to the military system and that, under no circumstances, may the military jurisdiction be involved in situations that violate human rights. The Court added that rape committed by members of the military can never relate to military discipline or the military’s mission. Consequently, since the rape perpetrated against Mrs. Fernández Ortega infringed legal rights protected by domestic criminal law and the American Convention, such as the victim’s rights to personal integrity and dignity, and since such conduct is evidently contrary to the obligation to respect and to protect human rights, it is excluded from the military jurisdiction.
Ten years after the Judgment, the Case of Fernández Ortega et al. v. Mexico continues at the stage of Monitoring Compliance with Judgment. This means that the Inter-American Court is periodically monitoring compliance by the State with the measures of reparation ordered in the Judgment (ver infra).
Inés Fernández Ortega, a member of the Me’phaa indigenous community, was sexually assaulted by soldiers who forced their way into her home on March 22, 2002.
“My idea of justice is linked to equity; that justice should be equal for everyone,”, ,” says Inés Fernández Ortega (Mexico), the victim in the Case of Fernández Ortega et al. v. Mexico. The Judgment in this case became paradigmatic in the Inter-American Court’s case law on the right of women to live a life free of violence.
Regarding compliance with the Judgment, the victim states that, even after the ten years, every day she is hoping “that the authorities will comply with the judgment issued by the Inter-American Court.”
Referring to the process that led her to the Inter-American Court, Mrs. Fernández Ortega indicates that she was motivated by the search to obtain justice not only for herself, but also to avoid other women having to experience similar events. “I sought justice so that no other indigenous woman would have to go through what I went through. Also, I am seeking the respect of society for our identity as indigenous women, and for our language. I don’t want us to be humiliated because of our language, and I want real access to justice on an equal basis.”
Following the proceedings before the Inter-American Court, Inés Fernández invites Mexican women “to have the courage to file complaints, so that their voice is heard; to report any incident and not to remain silent in the face of violations of our dignity as women.”
The stage of Monitoring Compliance with Judgment
The Inter-American Court, in exercise of its authority at the stage of Monitoring Compliance with Judgment, has indicated that the following measures of reparation still remain pending:
The judgment in this case is available here.