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ACCESS TO JUSTICE FOR WOMEN VICTIMS OF VIOLENCE IN THE AMERICAS I. INTRODUCTION
A. Obstacles women encounter when seeking redress for acts of violence: an analysis of the present situation
1. The IACHR observes that regional and international human rights protection systems have identified the right of women to live free from violence and discrimination as a priority challenge. The adoption of international human rights instruments that protect women’s right to live free of violence reflects a consensus among the States and their acknowledgment of the discriminatory treatment that women have traditionally received in their societies. The fact that the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (hereinafter the "Convention of Belém do Pará") has been ratified by more member States of the inter-American system than any other convention,[1] and that the majority of the American States have ratified the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter the "CEDAW") and its optional protocol, bespeaks a consensus within the region that violence against women is a widespread and open problem whose prevention, investigation, punishment and redress warrant State action.
2. The case law of the inter-American system holds that de jure and de facto access to judicial guarantees and protections is essential to eradicating the problem of violence against women and is a necessary precondition if States are to be in full compliance with the international obligation they have freely undertaken to practice due diligence in responding to this very serious human rights problem. However, the work done by the IACHR and the Rapporteurship on the Rights of Women (hereinafter the "Rapporteurship" or the "Women’s Rapporteurship") reveals that victims of gender-based violence often do not have access to adequate and effective legal remedies by which to denounce the violence they have suffered. The vast majority of these incidents go unpunished, leaving women and their rights unprotected. The Commission observes that most cases involving violence against women are never punished, which serves to perpetuate the practice of this serious human rights violation.
3. This report has been prepared to examine the main obstacles that women encounter when they endeavor to avail themselves of judicial remedies, with proper guarantees. It draws conclusions and makes recommendations urging the States to be duly diligent about offering an effective judicial remedy to incidents involving violence against women. The analysis contained in this report includes information that a variety of sectors sent to the Commission, including the administration of justice systems, officials and representatives of government, civil society, the academic sector and women of various races, ethnic origins and socioeconomic condition, all as part of a research project that the Rapporteurship undertook in the last two years with financial support from the Government of Finland.[2]
4. During preparation of this report, the IACHR circulated a questionnaire among the member States of the OAS and experts from civil society, international organizations and the academic sector. A total of 23 OAS member States answered the questionnaire, more responses than any Commission questionnaire has ever elicited. A variety of experts from the region who are active in the administration of justice, international organizations and civil society entities also answered the questionnaire. Five meetings of experts were organized: in Washington, D.C. (April 19-20, 2005), Peru (August 1-2, 2005), Costa Rica (August 11-12, 2005), Argentina (September 12-13, 2005) and Jamaica (September 29-30, 2005).[3] These meetings were regional and subregional in scope and were attended by over 130 experts, representatives of the government, the administration of justice system, civil society, international organizations, and the academic sectors. The information compiled during the project’s implementation has been coupled with the work of the inter-American system, which includes jurisprudence, thematic hearings held at headquarters,[4] thematic reports, country report chapters on the subject of women, and in loco visits organized both by the IACHR and the Women’s Rights Rapporteurship.
5. This report defines "access to justice" as de jure and de facto access to judicial bodies and remedies for protection in cases of acts of violence, in keeping with the international human rights standards. The IACHR has held that for access to justice to be adequate, the formal existence of judicial remedies will not suffice; instead, those remedies must be effective for prosecuting and punishing the violations denounced and in providing redress. As this report will establish, an effective judicial response to acts of violence against women includes the obligation to make simple, rapid, adequate and impartial judicial recourses available, without discrimination, for the purpose of investigating and punishing these acts and providing redress, so that in the end these acts do not go unpunished.
6. The premise of this report is that at the national level, the judicial branch of government is the first line of defense for protecting women’s individual rights and freedoms, which is why its effectiveness in responding to human rights violations is so vital. An adequate judicial response is essential if women victims of violence are to have a remedy against acts of violence and if those acts are not to go unpunished. In this report, the administration of justice is understood to include the judicial branch of government (in all its parts, the courts and administrative divisions), the police and forensic medicine services in urban and rural areas alike, whether their jurisdiction is national or local.
7. This report’s examination of the obstacles that women encounter when attempting to access justice in the Americas takes into account the inherent structural problems that the Commission has identified in the administration of justice systems in the region. The IACHR has repeatedly expressed concern over the problem of impunity and how ineffective the administration of justice systems have been in its prevention.[5] The Commission has also identified another set of structural problems besetting the justice systems in the Americas. These include the precarious state of the judicial branch of government, attacks on the independence of the judicial branch and its impartiality, the inadequate budget earmarked to the judicial branch, difficulties that low-income people must overcome in order to be able to avail themselves of the justice system, the instability and impermanence inherent in judicial appointments in some countries of the region, the removal of judges without regard for the basic due process protections, and the threats that judges, prosecutors and witnesses receive, a problem compounded by the inadequate protective measures provided by the State.[6] The Commission has also pointed to the particular difficultly that the traditional targets of discrimination -women, indigenous peoples and Afro-descendants- have in accessing the administration of justice systems.[7]
8. These structural problems are particularly onerous for women, given the discrimination they have historically suffered. The IACHR has established that the discriminatory socio-cultural patterns and behaviors that still persist are detrimental to women and prevent and obstruct the enforcement of existing laws and the effective punishment of acts of violence. This is the reality despite the fact that the American States have identified this challenge as one of their priorities. Legislative, political and institutional changes in American societies have outpaced the rate of change in a culture that tolerates violence and discrimination. The way in which officials in the administration of justice systems react to cases involving violence against women reflects the fact that these discriminatory socio-cultural patterns are still very much intact.
9. By the same token, it is worth noting that 19 countries of the hemisphere have introduced a number of reforms in their administration of justice systems. The gender issues discussed and analyzed in this report have evolved against this backdrop of change. Since the decade of the nineties, a considerable number of Spanish-speaking countries in the Americas have taken measures to convert their criminal justice systems from inquisitorial proceedings based on pre-written arguments, to accusatorial systems that rely on oral arguments. The Justice Studies Center of the Americas (hereinafter "CEJA"), which is tracking these changes closely, has listed some of the principal changes as follows:
Replacing inquisitorial systems with accusatorial systems, assigning criminal prosecution to the public prosecutor’s office, introducing a system of public hearings and trials conducted by oral argument, creating new institutions or strengthening others, giving the parties involved a more important role in the process and in some cases creating alternative mechanisms for settling differences.[8]
10. The definition of "violence against women" used as a frame of reference in the present report is the one that appears in the Convention of Belém do Pará, as follows:
any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere.[9]
to include physical, sexual and psychological violence:
a) that occurs within the family or domestic unit or within any other interpersonal relationship, whether or not the perpetrator shares or has shared the same residence with the woman, including, among others, rape, battery and sexual abuse;
b) that occurs in the community and is perpetrated by any person, including, among others, rape, sexual abuse, torture, trafficking in persons, forced prostitution, kidnapping and sexual harassment in the workplace, as well as in educational institutions, health facilities or any other place (…)
11. The following are some of the most basic principles of this Convention regarding the concept of violence that will be used in the analysis contained in the present report:
- The Convention expressly recognizes the relationship between gender-based violence and discrimination, and indicates that violence of that kind is a reflection of the historically unequal power relations between women and men, and that the right of every woman to a life free of violence includes the right to be free from all forms of discrimination and to be valued and educated free of stereotyped patterns of behavior;[10]
- It establishes that violence affects women in a variety of ways and obstructs their exercise of other basic civil and political rights, as well as economic, social and cultural rights;[11]
- The Convention stipulates that States Parties shall act with due diligence to prevent, investigate and punish violence against women that occurs in public and private, within the home or the community, whether perpetrated by individuals or agents of the State;[12]
- It provides that States Parties shall take special account of the vulnerability of women to violence by reason of, among others factors, their race or ethnic background or their status as migrants, refugees or displaced persons. Similar consideration is to be given to women subjected to violence who are pregnant or disabled, of minor age, elderly, socio-economically disadvantaged, affected by armed conflict or deprived of their freedom.[13]
12. In other words, the inter-American system recognizes that violence against women and its root cause, discrimination, is a serious human rights problem that has negative consequences for women and the community that surrounds them. Violence and discrimination are encumbrances to the full recognition and enjoyment of women’s human rights, including their right to have their lives and their physical, mental and moral integrity respected.
13. The principles that underpin the definition of "violence against women" in the Convention of Belém do Pará are reinforced by the definition of violence included in Recommendation 19 of the Committee on the Elimination of Discrimination against Women, which oversees compliance of CEDAW, a convention whose purpose is to promote de jure and de facto equality between men and women in the exercise of their basic human rights and fundamental freedoms.[14] The Committee, has written that the definition of discrimination contained in the Convention covers violence against women in all its forms, including:[15]
(…) acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.
14. Using that framework of analysis, this report concludes that while the States have formally and legally recognized that violence against women is a priority challenge, the judicial response to the problem has fallen far short of its severity and prevalence. The IACHR has found that in many countries of the region, a pattern of systemic impunity persists with respect to the judicial prosecution of cases involving violence against women. The vast majority of such cases are never formally investigated, prosecuted and punished by the administration of justice systems in this hemisphere.
15. The States, international organizations and civil society organizations have provided the Commission with statistics showing that relatively speaking, very few investigations are conducted and convictions won in cases of violence against women. In its response to the questionnaire, Chile reported that in 2004, a total of 236,417 cases of intrafamily violence were reported, yet only 14,149 (5.9%) were ever formally investigated.[16] About 92% of the cases were closed after the first hearing. Furthermore, since the entry in force of Law 19.325 to address intrafamily violence since 1994, the complaints of intrafamily violence have risen by 8-10%.[17] In Venezuela’s response to the questionnaire, the State reported that most cases of gender-based violence never reach the sentencing phase.[18] The Dominican Republic reported that in 2003, 2,345 complaints of intrafamily violence were recorded, 1,036 final judgments were delivered, and only 246 were convictions for violation to law 24-97 addressing intrafamily violence.[19] In 2004, 1,056 complaints were filed; 502 final verdicts were delivered; and only 188 were convictions.[20]
16. In Bolivia, an investigation conducted by the administration of justice reveals that in 100% of the case files reviewed that address matters related to the rights of women, about 71.2% were rejected by the prosecutors on the basis of lack of evidence and from these 41% corresponded to sexual crimes.[21] Gender-based discrimination was also identified in the actions of justice officials toward civil and criminal cases, confirmed in the judicial resolutions, the arguments presented by the plaintiffs, defendants and witnesses, by the public prosecutor’s office and the police.[22] The investigation also reveals that women prosecute more the redress of their rights.[23]
17. The research conducted by international and civil society organizations also found that most cases of violence against women are never investigated, prosecuted and punished. In Ecuador, a study done by the Quito-based Centro Ecuatoriano para la Promoción y Acción de la Mujer [Ecuadorian Center for the Advancement and Action of Women] (hereinafter "CEPAM") found that criminal proceedings are conducted on a very small percentage of the complaints filed. For example, 804 complaints were filed with 16 courts in the city of Guayaquil, yet proceedings were instituted in only 104 cases, which was 12.96% of the complaints filed.[24] In Nicaragua, one research study did an analysis of 1,077 verdicts delivered in criminal cases involving women’s rights and found that more than half ended in acquittals; in only 8 cases were protective measures ordered pursuant to existing laws.[25]
18. Research conducted in Chile, Ecuador and Guatemala found that only a small percentage of cases involving sex-related offenses actually goes to trial in these three countries: in Chile, an average of only 3.89% of the complaints filed in 2002 actually went to trial; in Ecuador, over a 12-month period 2.75% reached the sentencing phase (after having gone to trial); in Guatemala, 0.33% of the complaints actually went to trial.[26]
19. Similarly, at its thematic hearings the Commission received reports confirming deficiencies in the prosecution and punishment of acts of violence committed against women.[27] The reports cite omissions and errors in the investigative proceedings, caused by negligence, bias and insufficient information for a conviction. These reports also point out that the victim is victimized a second time when the authorities are more interested in her private life than in solving the case and punishing the guilty parties. Some administrative and judicial authorities do not respond with the diligence and deliberateness needed to investigate and prosecute the case and punish the guilty parties.
20. Recent in loco visits by the Rapporteurship have provided further confirmation of these findings. In a number of countries of the region, the Rapporteurship found that most cases involving violence against women have never been punished. The Rapporteurship’s in loco visit to Ciudad Juárez, Mexico, found that only 20% of the murder cases involving female victims had gone to trial and resulted in convictions. Hence, the overwhelming majority of these cases went unpunished.[28] During the Rapporteurship’s visit to Guatemala, both State officials and representatives of civil society said time and time again that the administration of justice system had failed to provide an effective response to crimes of violence. They reported that very few of these cases actually go to trial, leaving the crimes unpunished and making women feel even more insecure.[29] On the Rapporteurship’s visit to Colombia, a variety of governmental and nongovernmental sources voiced concern over the ineffectiveness of the justice system in prosecuting and punishing cases of violence against women committed as a result of the armed conflict, especially those perpetrated by those engaging in the hostilities and in areas under their control.[30]
21. The present report is divided into four parts. The first examines the human rights standards that apply to the right of women to adequate and effective judicial recourse when they are victims of violence. The second part of the report is an analysis of the main obstacles that women victims of violence encounter when they attempt to avail themselves of some judicial recourse, with due guarantees. This section exposes the gaps and irregularities in investigations into acts of violence committed against women; failings in the prosecution and punishment of such cases; the ineffectiveness of the mechanisms to protect women from violence; the barriers women victims encounter when they attempt to avail themselves of judicial protective services; structural problems within the justice systems that encumber the prosecution of cases involving violence against women, and the particularly critical situation of indigenous and Afro-descendent women to access judicial protection services. This section also examines a number of obstacles related to the content and implementation of the existing civil and criminal laws that challenge the effective punishment of acts of violence against women.
22. In response to these obstacles, the third part of the report reviews a number of State efforts to face the problem of violence against women in public policies and the administration of justice sector. Finally, the fourth part of the report concludes with a series of recommendations urging the States to act with due diligence to improve the judicial response to acts of violence against women.
B. The report’s legal framework: International provisions and standards that apply to the right of women to access adequate and effective remedies when they are victims of violence
23. The premise of the inter-American system of human rights is that access to adequate and effective judicial remedies is the first line of defense to protect basic rights, which includes the rights of women victims of violence. In the Americas, the absolutes of equality and non-discrimination are the core of the inter-American human rights system and of the binding instruments relevant to the present analysis, such as the American Convention on Human Rights (hereinafter the "American Convention"), the American Declaration of the Rights and Duties of Man (hereinafter the "American Declaration") and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (hereinafter the "Convention of Belém do Pará"). These instruments uphold a woman’s right to a simple and effective recourse, with due guarantees, for protection against acts of violence committed against her. They also establish the State’s obligation to act with due diligence to prevent, prosecute and punish these acts of violence and provide redress.[31]
24. The American Declaration and the American Convention have espoused a set of basic principles and obligations pertaining to the right of access to adequate judicial protection. Article XVIII of the American Declaration and articles 8 and 25 of the American Convention provide that every person has the right to resort to a court and the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal when that person believes his or her rights have been violated. The protection of these rights is reinforced by the States’ obligation erga omnes to respect the rights and obligations recognized in the Convention, an obligation undertaken with Article 1.1 of the Convention. The Inter-American Court of Human Rights (hereinafter "Inter-American Court") has expressed the following in this regard:
Article 25 in relation to Article 1(1) of the American Convention obliges the State to guarantee to every individual access to the administration of justice and, in particular, to simple and prompt recourse, so that, inter alia, those responsible for human rights violations may be prosecuted and reparations obtained for the damages suffered… Article 25 “is one of the fundamental pillars not only of the American Convention, but of the very rule of law in a democratic society in the terms of the Convention” ... That article is closely linked to Article 8(1), which provides that every person has the right to a hearing, with due guarantees, … for the determination of his rights, whatever their nature.[32]
25. Under Article 1.1 of the American Convention, access to effective judicial protection must be guaranteed "without any discrimination." The right to equal protection of the law is protected under Article 24 of the American Convention.
1. The due diligence obligation
26. The principal objectives of the regional human rights system and the principle of efficacy require that those guarantees be implemented. Therefore, if exercise of any of these rights is not guaranteed de facto and de jure by States within their jurisdiction, in Article 2 of the American Convention the States Parties have undertaken to adopt such legislative or other measures as may be necessary to give effect to those rights. Therefore, the States’ duty to provide judicial remedies is not fulfilled merely by making those remedies available to victims on paper; instead, those remedies must be adequate to remedy the human rights violations denounced.[33] The Inter-American Court has written that:
[t]he absence of an effective remedy to violations of the rights recognized by the Convention is itself a violation of the Convention by the State Party in which the remedy is lacking. In that sense, it should be emphasized that, for such a remedy to exist, it is not sufficient that it be provided for by the Constitution or by law or that it be formally recognized, but rather it must be truly effective in establishing whether there has been a violation of human rights and in providing redress.[34]
27. Therefore, the State has an obligation to act with due diligence in responding to human rights violations. This duty involves four obligations: prevention, investigation, punishment and redress of the human rights violation and the obligation to prevent impunity.[35] The Inter-American Court has held that:
This obligation implies the duty of States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.[36]
28. Impunity vis-à-vis violations of human rights exists where there is a "failure to investigate, prosecute, take into custody, try and convict those responsible for violations of rights protected by the American Convention." Further, "(...) the State has the obligation to use all the legal means at its disposal to combat that situation, since impunity fosters chronic recidivism of human rights violations, and total defenseless of victims and their relatives."[37] To prevent impunity, the State has an obligation, under Article 1 of the American Convention, to respect and ensure the rights recognized in the Convention:
The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.[38]
29. The inter-American human rights system has established that the obligation of the States to act with due diligence in response to acts of violence applies as well to non-State actors, third persons and private parties. The Inter-American Court has written that:
The State’s international responsibility may also be engaged by acts of private individuals that are not, in principle, attributable to the State. The effects [of the obligations erga omnes, incumbent upon States parties to the Convention, to respect and enforce the standards of protection] extend well beyond the relationship between a State’s agents and the persons subject to its jurisdiction; those effects manifest themselves in the positive obligation the State has to adopt the measures necessary to ensure effective protection of human rights in inter-personal relationships. The State may also incur responsibility for acts of private individuals when the State, by either the action or omission of its agents serving as guarantors, fails to comply with the obligations erga omnes contained in articles 1(1) and 2 of the Convention.[39]
30. Elaborating upon that standard for attribution of responsibility, in its judgment on the Case of the Massacre of Pueblo Bello the Court recently wrote that:
[a] State cannot be held accountable for every human rights violation committed by private individuals under its jurisdiction. Indeed, the erga omnes nature of a State party’s obligations to ensure the rights protected under the American Convention does not imply that it bears limitless responsibility for any act of private individuals. A State’s duty to adopt measures to prevent harm to and protect private individuals in their mutual relations depends on whether it had knowledge of a real and present danger to a particular individual or group of individuals, and whether it had any reasonable chance of preventing or avoiding that danger. In other words, although the legal consequence of a private individual’s act or omission may be to violate another private individual’s human rights, that violation is not automatically imputable to the State. The circumstances of each particular case have to be considered, as do the measures taken so that those obligations to ensure are fulfilled.[40]
31. To determine whether acts of third parties can be attributed to the State as violations for which it is internationally accountable, the Court has followed the reasoning used by the European Court, which is that the State can incur international responsibility for acts committed by third parties when it is shown that the State had knowledge of a real and immediate risk and failed to adopt reasonable measures to prevent it. The Inter-American Court has cited the European Court’s jurisprudence, as follows:
Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see the Osman judgment cited above, pp. 3159-60, para. 116).[41]
32. The Convention of Belém do Pará establishes that the due diligence obligation has a special connotation in cases of violence against women. This Convention reflects a shared hemispheric concern over the gravity of the problem of violence against women, the relationship between that problem and the discrimination that women have historically endured, and the need to adopt comprehensive strategies to prevent, punish and eradicate violence against women. Despite advances on the legislative front and in public policy, women of the Americas have been and continue to be the victims of discrimination in times of peace and conflict alike. That discrimination has denied women their right to be equal partners in civil and political affairs. They have not been treated as equals within the family and have been the victims of and exposed to various forms of psychological, physical and sexual violence.[42] The IACHR has previously reported that the fact that women account for over one half the hemisphere’s population is not reflected at decision-making levels in the political, social, economic, and cultural spheres.[43] The limited access that women have, especially women victims of violence and discrimination, is the product of this pattern of discrimination and inferior treatment.
33. The Convention of Belém do Pará recognizes the critical link between women’s access to adequate judicial protection when denouncing acts of violence, and the elimination of the problem of violence and the discrimination that perpetuates it. Article 7 of the Convention of Belém do Pará spells out the State’s immediate obligations in cases of violence against women, which include procedures, judicial mechanisms and legislation to avoid impunity:
- In the administration of justice, the Convention explicitly provides that States must “establish fair and effective legal procedures for women who have been subjected to violence which include, among others, protective measures, a timely hearing and effective access to such procedures.” They must also “establish the necessary legal and administrative mechanisms to ensure that women subjected to violence have effective access to restitution, reparations or other just and effective remedies (…)”
- In the area of law, the Convention requires States Parties to include in their domestic legislation “penal, civil, administrative and any other type of provisions that may be needed to prevent, punish and eradicate violence against women and to adopt appropriate administrative measures, where necessary,” and to take “all appropriate measures, including legislative measures, to amend or repeal existing laws and regulations or to modify legal or customary practices which sustain the persistence and tolerance of violence against women.”
- The State is also required to adopt legal protective measures “to require the perpetrator to refrain from harassing, intimidating or threatening the woman or using any method that harms or endangers her life or integrity, or damages her property.”
34. In the Convention of Belém do Pará, the States Parties agree to gradually undertake a series of specific measures aimed at ensuring a woman’s right to adequate, effective and prompt access to justice in cases of violence. They include the following: [44]
- Developing training of programs for “all those involved in the administration of justice, police and other law enforcement officers as well as other personnel responsible for implementing policies for the prevention, punishment and eradication of violence against women”;
- Implementing educational activities aimed at heightening the general public’s awareness of "the problems of and remedies for violence against women" and adopting public measures "to modify social and cultural patterns of conduct of men and women, including the development of formal and informal educational programs appropriate to every level of the educational process, to counteract prejudices, customs and all other practices which are based on the idea of the inferiority or superiority of either of the sexes or on the stereotyped roles for men and women which legitimize or exacerbate violence against women."
- Providing "appropriate specialized [support] services for women who have been subjected to violence, through public and private sector agencies, including shelters, counseling services for all family members where appropriate, and care and custody of the affected children", and
- Ensuring "research and the gathering of statistics and other relevant information relating to the causes, consequences and frequency of violence against women, in order to assess the effectiveness of measures to prevent, punish and eradicate violence against women and to formulate and implement the necessary changes (...)"
35. The IACHR examined the principles upheld in the Convention of Belém do Pará in its report on the case of Maria da Penha Fernandes.[45] The case was filed by a victim of domestic violence in Brazil, whose husband’s physical abuse and attempts to murder her tragically left her a paraplegic. All this happened despite the fact that she had filed a number of complaints with the State. In its decision on this case, the Commission invoked the Convention of Belém do Pará for the first time and decided that by failing to try, convict and punish the assailant for 15 years, the State had breached its obligation to exercise due diligence to prevent, punish and eradicate domestic violence.[46]
36. In that case, having found violations of articles 8 and 25 of the American Convention and of Article 7 of the Convention of Belém do Pará, it was the Commission’s view that a State’s obligation with respect to cases involving violence against women is not merely to prosecute and convict those responsible, but also "to prevent these degrading practices."[47] With "clear and decisive evidence" to complete a prosecution, there should be no unwarranted delays in ruling on a criminal case, which should be completed swiftly and effectively.[48] The IACHR found that judicial ineffectiveness vis-à-vis cases of violence against women creates a climate of impunity conducive to domestic violence, "since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts."[49]
37. In the report on this case, the Commission made a number of concrete recommendations for redressing the wrong done to the victim and putting an end to the State’s condoning of domestic violence. The following are among the principles underlying its recommendations to the State: steps must be taken to educate officials in the judiciary and the specialized police so that they understand the importance of not condoning violence against women; educational programs for the general public are also needed; criminal justice proceedings must be simplified so that they can be expedited, but never at the expense of the rights and guarantees of due process; and the number of special institutions to which women victims of violence can turn to file complaints must be increased.[50]
38. The Commission has also established that in cases of violence against women, the right to a recourse set forth in Article 25, interpreted in conjunction with the obligation in Article 1.1 and the provisions of Article 8.1, "must be understood as the right of every individual to go to a tribunal when any of his rights have been violated (whether a right protected by the Convention, the constitution or the domestic laws of the State concerned), to obtain a judicial investigation conducted by a competent, impartial and independent tribunal that will establish whether or not a violation has taken place and will set, when appropriate, adequate compensation."[51] It also pointed to the investigation as a critical phase in cases of violence against women. The Commission observed that the "importance of due investigation cannot be overestimated, as deficiencies often prevent and/or obstruct further efforts to identify, prosecute and punish those responsible."[52]
39. The obligations established in Articles 8 and 25 of the American Convention and Article 7 of the Convention of Belém do Pará pertaining to the investigation, trial and redress of human rights violations can be studied by examining the jurisprudence of the inter-American system for the protection of the human rights of all persons under a State’s jurisdiction. Accordingly, when the Inter-American Court and the Inter-American Commission assess how effective the internal judicial proceedings are in remedying human rights violations, they look at the entire process into account, including decisions taken at differing levels, in order to thereby ascertain whether all the proceedings and the manner in which the evidence was produced were fair.[53]
40. The case law of the inter-American system has underscored the point that the failure to conduct an investigation and punish those responsible constitutes non-compliance with the State’s obligation to ensure the free and full exercise of human rights to the victims and their next of kin, and a failure to keep faith with society’s right to know the truth.[54] Inter-American case law has highlighted the importance of conducting an immediate, exhaustive, serious and impartial investigation into human rights violations. The Court has written that the investigation:
[m]ust be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.[55]
41. The IACHR pointed out that an investigation must be undertaken in an immediate, exhaustive, serious and impartial fashion[56], and it must be aimed at exploring all the possible lines of inquiry to identify the perpetrators of the crime with a view to their subsequent prosecution and punishment. The State can be held accountable for failing to order, practice or evaluate evidence that may be critical to solving a case.[57]
42. The obligation of due diligence to prevent situations of violence, especially where widespread or deeply-rooted practices are concerned, imposes upon the States a parallel obligation. On the one hard, States should monitor the social situation by producing adequate statistical data for designing and assessing public policies. On the other hand, States should take into account the policies implemented by the civil society. The obligation undertaken in Article 7.b of the Convention of Belém do Pará must be read in combination with the obligation established in Article 8.h to guarantee that statistics and other relevant data on the causes, consequences and incidence of violence against women are researched and compiled with a view to evaluating the effectiveness of measures to prevent, punish and eradicate violence against women and then formulating and introducing any needed changes.
43. Statistical data on the problem of violence against women is an important public interest issue. Hence, States must have appropriate legal and administrative mechanisms to ensure ample access to that information, establish vehicles for circulating it, and encourage public debate and scrutiny of the policies being implemented in that realm.
44. International experts have identified a set of guiding principles that can be built into any system devised to compile information at the national level in the Americas with a view to gathering statistics on incidents of violence against women.[58] State agencies charged with compiling national statistics and ministries such as Justice and Health, play key roles in determining what the standards and methods will be for compiling data, in ensuring that the data are obtained on a consistent basis and as often as necessary, and in seeing to it that the data are effectively and promptly circulated. States must compile that information in partnership and consultation with the various sectors that have the critical data, including the victims themselves, their communities, state centers and agencies tasked with this issue, academia, international organizations, and civil society organizations. A cooperative relationship between the producers and users of statistics must be institutionalized.
45. A number of international and regional organizations, such as the Economic Commission for Latin America and the Caribbean (hereinafter "ECLAC") and other United Nations agencies have devised a set of indicators of violence and discrimination against women and have prepared invaluable studies on these issues that are useful tools for States to use in this area. Such efforts must be transparent and treat the victim’s safety and privacy as paramount concerns. The information compiled must be accessible to victims, civil society and the general public, and be delivered in a format intelligible to a variety of audiences.
2. Due diligence and access to judicial protection
46. Both the Inter-American Court and the IACHR have repeatedly held that investigation of cases of human rights violations, which includes cases of violence against women, must be conducted by competent and impartial authorities. When investigations are not carried out by appropriate authorities, duly trained in gender-related issues, or when those authorities fail to cooperate with each other, the investigations are needlessly delayed and important clues or evidence overlooked, which will be detrimental to any future proceedings on the case.[59]
47. As for the evidence that must be examined in cases involving violence, international principles stipulate that, as a minimum, all material and documentary evidence and statements of witnesses must be compiled and analyzed. As the Commission has stated, this is the minimum required in cases of suspicious deaths.[60] The persons in charge of the investigation must have access to the crime scene.[61] In homicide cases, proper autopsies must be conducted and specific pieces of evidence must be preserved in cases of suspected sexual assault.[62]
48. Also relevant to the analysis done in this report are the obligations undertaken by the States in the international sphere, which spell out their judicial obligations vis-à-vis women victims of violence. For example, Article 4 of the Declaration on the Elimination of Violence against Women provides that States must exercise due diligence to prevent and investigate acts of violence against women, whether those acts are perpetrated by the State or by private individuals. It further provides that States must develop "penal, civil, labour and administrative sanctions" in their domestic legislation to redress the wrongs caused to women who are subjected to violence.[63] Similarly, paragraph 124(d) of the Beijing Platform for Action, [64] adopted by the Fourth World Conference on Women, calls for States to take measures to ensure that women subjected to violence have access to just and effective remedies, including compensation and indemnification. The United Nations Rapporteur has recently described the principles that are the underpinnings of the due diligence obligation:
There are certain basic principles that underlie the concept of due diligence. The State can not delegate its obligation to exercise due diligence, even in situations where certain functions are being performed by another State or by a non-State actor. It is the territorial State as well as any other States exercising jurisdiction or effective control in the territory that remain, in the end, ultimately responsible for ensuring that obligations of due diligence are met. Related to this point is the notion that due diligence may imply extraterritorial obligations for States that are exercising jurisdiction and effective control abroad.[65]
49. CEDAW figures prominently among these instruments, as it was crafted for the purpose of achieving women’s de jure and de facto equality with men in the enjoyment of their human rights and fundamental freedoms.[66] Article 1 of CEDAW features a sweeping definition of "discrimination against women," as follows:
… any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
50. This definition covers any gender-based differential treatment whose intended purpose or practical effect is to place women at a disadvantage and deny them the full enjoyment of their human rights in public and in private. As previously noted, the Committee that supervises the implementation of the CEDAW has held that the Convention definition of discrimination includes violence against women.[67]
51. Recently, the European Court of Human Rights held that to effectively investigate and punish cases of sexual assault, States must consider both the body of evidence and the context in which the sexual assault occurred, and not confine themselves to direct evidence of physical resistance on the part of the victim.[68] In the case of M.C. v. Bulgaria, the Court found that the State of Bulgaria’s international responsibility had been engaged because it had closed a criminal investigation into the rape of a 14-year old minor when no evidence of the use of force or of physical resistance during the rape was found.[69] The Court reasoned that the authorities had failed to consider all the circumstances that might have prevented physical resistance on the part of the victim in this case, given the particular vulnerability of a minor in cases of rape and the environment of coercion created by the assailant. The Court wrote that:
[w]hile in practice it may sometimes be difficult to prove lack of consent in the absence of “direct” proof of rape, such as traces of violence or direct witnesses, the authorities must nevertheless explore all the facts and decide on the basis of an assessment of all the surrounding circumstances. The investigations and its conclusions must be centred on the issue of non-consent.[70]
52. International human rights instruments provide that physical evidence must be gathered by specialists trained in the type of violence being investigated, and preferably should be the same sex as the victim. The victim’s culture and the context in which the assault occurred must be taken into consideration. If necessary, an interpreter should be made available and must not be a government official.[71]
53. As for the conduct of members of the judiciary, international principles underscore the importance of a judiciary that decides matters impartially, without restrictions, improper influences, inducements, pressures, threats or interferences of any kind, direct or indirect, from any quarter or for any reason.[72] In the case of prosecutors, the international principles stipulate that prosecutors are to perform their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination.[73] International standards also provide that a government is to ensure that lawyers and legal services are available to all persons subject to the State’s jurisdiction, throughout the national territory and without distinction. Such services are especially intended for socially and economically disadvantaged persons.[74] Law enforcement officials shall at all times f |
