|
|
REPORT
Nº 53/01 CASE
11.565 ANA,
BEATRIZ AND CELIA GONZALEZ PEREZ[1] MEXICO April
4, 2001
I.
SUMMARY
1.
On January 16, 1996, the Inter-American Commission on Human Rights
(hereinafter “the Inter-American Commission” or “the IACHR”)
received a petition filed by the Center for Justice and International Law
(CEJIL, hereinafter “the petitioners”). The petition alleges the
international responsibility of the United Mexican States (hereinafter
"the State") for the illegal detention, rape, and torture of the
Tzeltal native sisters Ana, Beatriz, and Celia González Pérez, as well
as the subsequent failure to investigate and provide redress for those
acts. The petitioners allege violation of several rights enshrined in the
American Convention on Human Rights (hereinafter the "American
Convention"): right to humane treatment (Article 5); right to
personal liberty (Article 7); right to a fair trial (Article 8); right to
privacy (Article 11); rights of the child (Article 19); and right to
judicial protection (Article 25). 2.
According to the petition, on June 4, 1994 a group of military
personnel detained in the state of Chiapas, Mexico, the sisters Ana,
Beatriz, and Celia González Pérez and their mother Delia Pérez de González,
in order to interrogate them; the four women were held for approximately
two hours. The petitioners allege that the three sisters were separated
from their mother, beaten, and raped several times by the military
personnel; that on June 30, 1994 a petition was filed with the Federal
Public Prosecutor’s Office (Office of the Attorney General of the
Republic or “PGR”) based on a gynecological examination; that same
examination was corroborated before the said institution by the testimony
of Ana and Beatriz, the two older sisters; that the record was transferred
to the Office of the Public Prosecutor for Military Justice in September
1994; and that the latter decided finally to close the record for failure
of the sisters to come forward to testify again and to undergo an expert
gynecological examination. The petitioners assert that the State failed in
its duty to investigate the facts denounced, punish those responsible, and
provide redress for the violations. 3.
For its part, the Mexican State contends that the competent
authorities carried out a serious investigation, although domestic
remedies were not exhausted; that the representatives of the González Pérez
sisters did not show sufficient interest in the case; consequently, the
military investigation could not be reopened; and that human rights were
not violated. 4.
In this report, the IACHR analyzes the merits of the case reported
and concludes that the Mexican State is responsible for violation of the
rights enshrined in the American Convention: right to humane treatment and
to privacy (Articles 5 and 11); right to personal liberty (Article 7);
right to a fair trial and judicial protection (Articles 8 and 25); and in
the case of Celia González Pérez, rights of the child (Article 19); all
in keeping with the general obligation to respect and guarantee rights,
provided for in Article 1(1) of this international instrument.
The Inter-American Commission also establishes that the Mexican
State is responsible for violation of Article 8 of the Inter-American
Convention to Prevent and Punish Torture. 5.
As a result of the violations established, the IACHR is
recommending that the State conduct a serious, impartial, and exhaustive
investigation to determine the criminal liability of those responsible for
the violations mentioned and that it impose, as necessary, the appropriate
legal sanctions on the guilty parties.
It further recommends that Mexico provide adequate compensation to
Ana, Beatriz, and Celia González Pérez for the infractions committed. II.
PROCESSING BY THE COMMISSION 6.
The Inter-American Commission assigned the number 11.565 to the
case and requested information from the Mexican State on the pertinent
parts of the petition on January 18, 1996.
Following an extension granted by the Commission to Mexico, the
latter provided a response on May 13, 1996, which was forwarded to the
petitioners on May 24, 1996.
The comments of the petitioners were transmitted to the Mexican
State on September 10, 1996.
On October 24, 1996, the State sent its comments to the Commission,
which forwarded them to the petitioners. 7.
The IACHR requested updated information from the petitioners on the
case on November 13, 1998 and, in the absence of a reply, repeated the
request on March 19, 1999. The petitioners submitted information on the
case on May 27, 1999, the Mexican State doing likewise on July 14, 1999.
Finally, the petitioners submitted additional comments on September
7, 1999. 8.
On October 4, 1999, a working meeting was held to address this case
at the headquarters of the Commission and was attended by the petitioners
and representatives of the State. At the meeting, the Commission received
updated information on the positions of the parties with regard to the
admissibility and merits of the petition. 9.
During its 105th session, the Inter-American Commission
reviewed the case and declared it admissible in its report Nº 129/99 of
November 19, 1999.[2]
In
that report, the IACHR decided to make itself available to the parties
with a view to reaching a friendly settlement.
On December 20, 1999, the State submitted correspondence in which
it stated that it could not accept the offer of the Inter-American
Commission due to the circumstances surrounding the case.[3]
In correspondence addressed to the IACHR of March 2, 2000, the
petitioners signaled their willingness to discuss a friendly settlement of
the case, based on the evidence presented in PGR Preliminary Investigation
Nº 64/94.
The State did not change its position on the matter. III.
POSITIONS OF THE PARTIES
10.
The Inter-American Commission in its report Nº 129/99 analyzed the
arguments of the parties pertaining to the requirements set forth in
Articles 46 and 47 of the American Convention.
The allegations pertaining to the merits of the issue are
summarized below, and will be expanded in the analysis of this case. A.
The petitioners 11.
The petitioners alleged that on June 4, 1994, at approximately 2:30
p.m., members of the Mexican Federal Army arbitrarily detained Mrs. Delia
Pérez de González and her daughters Ana, Beatriz, and Celia, and
interrogated them in order to make them confess to membership in the Zapatista
National Liberation Army – EZLN (Ejército
Zapatista de Liberación Nacional).[4]
They
claim that facts were duly reported with strong supporting evidence to the
authorities in Mexico but that the transfer of competency to the Office of
the Public Prosecutor for Military Justice and its lack of willingness
resulted in the failure to investigate the violations, the result being
that, to date, those responsible have gotten off scot-free. B.
The State 12.
The Mexican State indicates that it has not been able to verify
fully the claims of the petitioners, due to the lack of cooperation on the
part of the victims.
It alleges that the investigation was closed because the González
Pérez sisters refused to appear in the Office of the Public Prosecutor
for Military Justice to submit their evidence and to undergo another
gynecological examination.
As a result, it maintains that the Mexican State did not engage in
any human rights violations whatsoever and asks the Inter-American
Commission to reject the petition. IV.
ANALYSIS A.
Right to personal liberty (Article 7 of the American Convention) 13.
Article 7(1) of the American Convention guarantees every person the
right to personal liberty and security.
The petition alleges that on June 4, 1994, the sisters Ana,
Beatriz, and Celia González Pérez, and their mother Delia Pérez de González
were “illegally detained by members of the Mexican Federal Army” at
the military checkpoint located on the road to the Jalisco communal lands,
Altamirano municipality in Chiapas State, at approximately 2:30 p.m., as
they were returning from a neighboring town to which they had gone to sell
their agricultural produce.[5] 14.
They add that at the time of their detention, “the military
personnel started to harass and torture them to make them confess their
membership in the EZLN …
since they belong to the Tzeltal ethnic group their knowledge of
Spanish is very limited, owing to which they could not respond to the
questions that were put to them."[6]
According to the report, the military officers separated the
sisters from their mother at that time and led them to a wooden room when
the interrogation allegedly continued. 15.
The petitioners maintain that the threats continued in that room,
with the participation of a high-ranking officer, who had ordered other
soldiers to enter and hold the women.
The petition states that the three sisters were then repeatedly
raped by the military officers there, until 4:30 p.m.
After this, the mother was allowed to enter the room and the
official, with the assistance of an interpreter, “threatened the victims
and stated that if they reported the incident, they would be detained
again and imprisoned at Cerro Hueco or even killed.”[7] 16.
An account of the incident that took place on June 4, 1994 is
provided in the report filed by the victims and their representatives with
the Office of the Attorney General in San Cristóbal de las Casas,
Chiapas, on August 30, 1994.
That report, which opened preliminary investigation 64/94, contains
the fingerprints of the three González Pérez sisters and the written
account that was prepared with the assistance of translators.
In the document, which has been in the possession of the Mexican
authorities since August 30, 1994, the persons filing the report state: As
we passed through the checkpoint, [the soldiers] started to harass us,
stating that we had to be checked.
We therefore returned and tried to pass through the other
checkpoint located at the entrance to the road leading to the Jalisco
communal lands.
I did not want them to check me, because I was afraid that they
would take away the money that we had made and would harass us by checking
our bodies.
I did not like this and am bothered by the way they touch us to see
what we have in our clothing.
The soldiers at the other checkpoint did not let us pass either,
and began to ask us our names and where we were going, and stated that we
could not pass.
They took us from there to the other checkpoint, the first one,
where they ordered us to sit, but our mother began to cry and we were
separated.
One of the soldiers said that we had to speak to a Sergeant and
separated us. At
the checkpoint, the Sergeant told us that we had to await the arrival of
the Commander who would speak to us, and told us also that we should not
be worried.
While the Sergeant was speaking by radio to the Commander, some of
the other soldiers who were there asked us if we were single women, and
when we said that we were, they told us that that was good, since we had
to spend the night with them. About
ten soldiers then grabbed us and carried us away by force, dragging and
shoving us, and shouting things at us that we could not understand.
They then put us in a house by ourselves and our mother stayed
outside. There
were only children and one indigenous man there, dressed white, wearing a
shirt with patches and a hat, who seemed to be looking for his horse. The
house where they put us had only one wooden room, was windowless, had an
unpainted door, a sheet metal roof, an earth floor, was fairly small, and
had an outdoor kitchen.
Inside, there was a bed and hoes, sticks, pickaxes, machetes, and
an ax.[8] 17.
The report goes on to describe in detail the abuse suffered by the
sisters. In
addition, it describes the interrogation during which they were accused of
being members of EZLN, to which they responded that they knew nothing of
the accusations, that they were not zapatistas,
and that they did not have weapons.
They added that when they stated this, the soldiers became more
enraged, and that they could not see their mother during the entire time
that were interrogated and abused.
They could not tell how long the incident lasted, but they stated:
“when we entered the house it was daylight, and when we left it was
about 6:30 in the evening, since the sun was setting.”
They end this part of the report to the PGR by stating that they
finally managed to leave the place where they had been detained and
abused, walking slowly because they had been beaten, and reached their
community at 7:30 p.m. 18.
The State argues that the Armed Forces were performing public
safety activities in Chiapas, in accordance with Mexican domestic law: The
Constitution of the United Mexican States clearly stipulates that it is
the responsibility of the Armed Forces to guarantee the domestic safety
and external defense of the Federation, and that these forces cannot limit
themselves solely and exclusively to their barracks and that they can take
action in any place and at any time, in times of both war and peace. The
Organic Law of the Mexican Army and Air Force provides a more detailed
description of their general mission, which is to: “I. Defend the
integrity, independence, and sovereignty of the nation; II. Guarantee
domestic security; III.
Assist the civil population when such assistance is needed; IV.
Engage in civic and social activities that are aimed at the
progress of the country; and V. In the event of disaster, provide
assistance in the area of law and order, assistance to persons and their
property, and with the rebuilding of the areas affected.”
(emphasis in the original). Based
on these guidelines, the military officers were performing a service
outside their barracks aimed at the protection of the civilian population,
the human rights of whom were seriously affected by a group that violates
the law, and in support of the civilian authority of Chiapas State, since
their efforts to reestablish rule of law were being thwarted by this
group. The
military officers were performing a service on that day related to the
CHECKPOINTS; consequently, they were on duty and never left the location,
since the place where the alleged victims were taken for interrogation was
within the radius of the area assigned for the performance of their
activities.
(Upper case in the original)[9] 19.
The State also cites a part of the proceedings for
unconstitutionality (I/96) instituted by the members of the LVI
Legislature against Article 12(III and IV) of the "General Law
Establishing the Coordination Bases of the Public Security system."[10]
In these proceedings, the federal legislators argued that the Army,
Navy, and Air Force of Mexico had usurped the security functions assigned
solely to the civil authorities.
The Mexican Supreme Court decided to declare these proceedings
lawful but unfounded; consequently, the legal provisions challenged were
constitutional.
The Mexican Supreme Court maintained, inter
alia, that: The
law is the expression of the will of the people and military officers do
not have to take any action in their regard unless they are so requested,
ordered, or authorized by the civil authorities, in all matters that are
not directly related to their duty to obey, the basic law to which they
are bound. (sic) The
possibility of the provision of assistance and support by the Army to the
civil authorities has been noted, as long as it is recognized that the
military is, in all situations, subject to the civil authority, and can
act when the legitimate authority seeks its assistance.[11] 20.
In that decision, the Supreme Court confirms that "the Armed
Forces have the authority to act, following the orders of the President,
under his strictest responsibility," in situations that are not
"dire cases of intrusion, serious law and order disturbances, or any
other situation that places a society in serious danger or conflict,"
but which create the concern that, without the immediate intervention of
the Armed Forces, such situations can become very dire.
The Supreme Court expressed its opinion as follows: Great
care must be exercised to safeguard individual guarantees by ensuring,
through close monitoring, even through the appropriate entities, that
actions are taken in accordance with the procedures outlined.
For the population, the suspension of guarantees can lead to the
undermining of the inestimable values of life and liberty, which is
clearly not in the interest of the community, and to justification of
intervention by the Armed Forces, the purpose of which is to provide
service. Consequently,
an effort should be made to avoid that extreme situation and to promote
measures that make it possible to overcome the situation, even with the
assistance of the Armed Forces, but based on absolute respect for
individual guarantees and subordination to the civil authorities.[12] 21.
The State adds that "the intention of the petitioners to
mislead the Commission is totally and manifestly clear."
It further provides several statements regarding the conduct of the
members of the Armed Forces in the area.[13]
Based on the foregoing, the State maintains its position that no
infraction took place in this case.[14] 22.
It is the responsibility of the IACHR to analyze whether the
deprivation of the liberty of the three González Pérez sisters and their
mother, which took place in Chiapas on June 4, 1994, under the
circumstances described above, constituted a violation of the right to
personal liberty guaranteed in the American Convention.
On a preliminary basis, it should be borne in mind that all States
have not only the right but also the duty to preserve law and order and
public safety within their territory.
In that regard, the guarantees established in the American
Convention for the protection of the right to liberty and personal
security do not in any way imply the curbing of the legitimate activity of
the public security organs of the State.
The prohibition of arbitrary detentions is precisely a basic
safeguard of citizen safety, to the extent that it prevents the legal
mechanisms created to defend the safety of all inhabitants from being used
to commit transgressions. 23.
The analysis of the compatibility of the deprivation of liberty
with the provisions of Article 7(2 and 3) of the American Convention
should be done in three phases.
The first consists of determining the legality of the detention
from a material and formal standpoint.
To do so, it must be determined whether this action is compatible
with the domestic legislation of the State in question.
The second step involves the analysis of these domestic provisions
within the context of the guarantees established by the American
Convention, in order to determine whether they are arbitrary.
Finally, if the detention meets the requirements of a domestic
legal provision that is compatible with the American Convention, it should
be determined whether the application of this law in this specific case
was arbitrary. 24.
In this case, the Mexican State has provided general information
aimed at justifying the presence of the Armed Forces in Chiapas, but has
not cited the specific domestic legal provision that authorized the
military officers to detain civilians.
The State fails to make clear the relevance of the Supreme Court
decision regarding the composition of the National Public Security Council
to the specific claims and facts analyzed herein.
In the view of the Commission, this State has failed to fulfill its
obligation to provide an explanation regarding the specific claim
pertaining to the illegality of the detention. 25. The information contained in the file shows that the four women were deprived of their liberty while they were traveling on the public road. Armed soldiers at a military checkpoint in Altamirano, Chiapas, in the conflict area, detained them a few months after the EZLN rebellion. Subsequently, the four women were taken away and held against their will. 26.
The Inter-American Commission notes that, from the time that the
EZLN armed rebellion started in 1994, the Mexican State did not adopt any
measures related to the suspension of guarantees in Chiapas State in
accordance with Article 27 of the American Convention.[15]
However, Article 7 of the aforementioned international instrument
is fully applicable to this case.
With regard to the first step of the above-mentioned analysis, the
facts related to the case show that the four women were deprived of their
liberty without any reason being given and without any order from the
appropriate authority, which constitutes a clear violation of the
guarantees established in the American Convention. 27.
Since this case has not made it through the first of three steps of
the analysis mentioned above, the IACHR concludes that the Mexican State
is responsible for the violation of the right of Ana, Beatriz, and Celia
González Pérez and Delia Pérez de González to liberty and personal
security, which is protected under the American Convention. B.
Right to humane treatment and privacy (Articles 5 and 11 of the
American Convention) 28.
An analysis must now be done of the information pertaining to what
was said to have taken place in the closed room near the checkpoint where
the Tzeltal sisters were detained in Chiapas, based on the applicable
provisions of the American Convention. 29.
The petitioners claim that the three sisters were beaten and
physically abused while they were in the custody of the military officers,
in order to get them to admit to membership in the EZLN.
They further claim that the three sisters were raped repeatedly by
the majority of the military officers holding them in the wooden room
mentioned above, as others looked on.
According to the petitioners, before they were let go, they were
told that if they reported what had happened, they would be killed. 30.
The complaint filed by the victims and their representatives in the
PGR office in Chiapas on August 30, 1994 contains information regarding
the events. The version of the oldest González Pérez sister is provided
below: Two
soldiers grabbed me, and one threw me on the floor as I tried to defend
myself and my sisters with my hands and bites.
However, many soldiers were holding my sisters and me and they
would not leave us alone.
They continued to hit my sisters and me until we could no longer
defend ourselves. At
the same time, I saw that my other two sisters [Beatriz and Celia] were
lying on the floor near to me and at least two soldiers were having sex
with Beatriz, but I could not see how many were having sex with [Celia].
One soldier also told us that he would give us pills to prevent us
from getting pregnant.
The
first soldier who assaulted me was tall, heavy, dark-skinned, young, and
had a moustache.
He put himself on top of me while another held me and pushed me
down and took off my pants and underwear.
He forced me to open my legs and placed his yath
(penis) inside my l’u
(vagina). I
felt great pain, and felt as though I was dying and then passed out; when
I regained consciousness, I saw another soldier on top of me and I tried
to scream but he pushed a handkerchief in my mouth and covered my eyes
with a cloth.
This soldier was younger than the first and thinner…. While
they were on top of us, they were laughing and saying things like: how
delicious the zapatistas are and how good it was that they took advantage of us.
I remember that my sisters were screaming a lot.
They were not saying anything, they were only screaming.
Sometimes they shouted: “let us go.” [16] 31.
The second of the González Pérez sisters also gave her version of
the events that occurred on July 4, 1994: I
remember that they grabbed me and the person who took advantage of me was
thin, dark-skinned, and tall, and seem to be indigenous.
I remember the screams of my sisters and seeing Ana in bed with
other soldiers.
They were near me on one side, and I could not see what was
happening in front of me.
I only heard her screams and those of my sister Celia.
Two soldiers were holding on to Ana and another to Celia… We
counted about ten soldiers when we entered the house.
However, some left and when we screamed for help, we heard those
soldiers fighting to see who could get in bed with us first… We were crying and complaining about the fact that we were being hit and what they had done to us. When we went out, we could see that our mother was also crying, since she had heard our screams from outside where she was being held. Like us, she does not speak Spanish, I understand a little bit of Spanish but cannot speak it.[17] 32.
The Commission will now discuss the events related by the
petitioners and borne out in documents that were not disputed by the
Mexican State.
The IACHR has ascertained that on June 29, 1994, Dr. Guadalupe Peña
Millán, a certified medical practitioner, did a gynecological examination
of each of the three sisters and noted that signs of rape were evident,
more than 20 days after the facts were reported.
This medical evidence was included with the complaint filed on June
30, 1994 with the PGR's office in San Cristóbal de las Casas, Chiapas.
On August 30, 1994, Ana and Beatriz González Pérez confirmed and
explained their complaint before this authority as part of Preliminary
Investigation 64/94 that had been opened on the basis of the complaint. 33.
The medical report, which was not disputed by the Mexican State, is
dated June 29, 1994, and bears the signature of Dr. Guadalupe Peña Millán,
whose professional identification number is 1182409, and has been duly
registered. She states that she "is available to provide any
clarification."
The medical report provides a detailed description of the medical
examination done of the three sisters, as well as of the circumstances
surrounding the case.
In that regard, Dr. Peña Millán explains that the women:
"simultaneously received emotional support first and three hours
later were sent to the medical clinic, and, with the assistance of a
translator, they were told the reasons for the medical check and asked
whether they wanted it done.
They were also given a detailed description of what the check would
entail, and they confirmed that they did want it." 34.
Ana González Pérez, age 20, indicated that during the medical
examination she had a stomach ache and felt nauseous, and the gynecologist
noted that "she was oriented in terms of time, and space, she walked
slowly, was medium complexioned, suffered hypertrophy (diminished muscle
mass), was prone to crying, and had a calm demeanor and was cooperative
during the interrogation."
The medical certificate noted the woman spoke "in a low tone,
agreed to a general check but had reservations about the gynecological
exam, did not show any visible sign of illness, and when placed in the
position for the gynecological exam, became apprehensive. It was again
explained to her that she would not be hurt, that she would simply be
checked and a sample taken.
She agreed, but at the beginning her legs were trembling
slightly."
The report on the examination of Ana González Pérez stated: Slight
muscular resistance was found (enough to make the examination difficult);
the labia majora covered the labia
menora, and when placed in the lithotomy position, her hymen was found
to be torn, and the surrounding areas red and swollen; she has erythema ++
that is more than 15 days old, and scarring over 90% of the area with at
least three carunculae myrtiformis,
and swelling ++ (moderate redness because of irritation in the genital
area at the time of the check), with a whitish discharge from which the
sample was taken. 35.
Beatriz González Pérez, 18 years of age, "seemed nervous,
was sad-faced, and apprehensive, but she cooperated during the
interrogation (she was asked the same questions)."
Dr. Peña Millán describes her gynecological check thus: There
was muscular resistance, suffering, anguish, and fear.
The check was stopped in order to speak to her and provide her with
reassurance and support.
Finally, despite moderate muscular resistance, it was noted that
the labia majora covered the labia
menora, with carunculae
myrtiformis protruding from the vulva, and when placed in the
lithotomy position, her hymen was found to be torn.
She had erythema +++ in the vulva, and the remainder of the carunculae
myrtiformis were erythematous +++ and there was no discharge… on the
inner aspect of the labium minor and at the level of right junction were
two lesions in the form of erythematous plaques with a whitish halo.
A general vaginal sample was taken using a swab, and since it was
not possible to obtain a sample of these plaques, the examination was
concluded. 36.
Celia González Pérez, 16 years old, displayed much more fear and
anguish during the examination: She
began to breathe heavily, and we calmed her down.
When placed in the position for the gynecological examination, she
covered her face with both hands.
She was on the verge on tears.
For a while, her body moved involuntarily
(convulsions) while her breathing and heart rate increased.
At that time, the check had not yet started.
There was muscular resistance during the entire period, and it was
very difficult to evaluate the genital area and only the following
information was obtained: the labia
majora covered the labia menora,
with a slight white discharge.
The vulva was erythematous ++++, and she had at least five linear
dermoepidermal lesions on both buttocks (two on the right and three on the
left), which were consistent with scratches and had bloody edges, with
desquamation more than 15 days old.
At the end of the check, she was extremely upset, and was crying
uncontrollably.
She was again sent to the emotional support section. 37.
The gynecologist concludes her medical report thus: It
is important to point out that the three women were in a very poor
emotional state, and the gynecological examination, which lasted for more
than 45 minutes on average, caused them to relive the trauma.
In addition to the information provided above, laboratory samples
were obtained in order to conduct tests or prevent sexually transmitted
diseases… An antibiotic (penicillin) was prescribed as a prophylactic
(preventive treatment) against venereal diseases.
During the follow-up visits, VDRL and HIV tests will have to be
conducted, since the sexual habits of the aggressors are unknown and this
is not possible now because of the refusal of the three women to give a
blood sample.
At the time of the check, the possibility of pregnancy was ruled
out. In
addition to the foregoing, psychological treatment was recommended in
order to facilitate emotional recovery, prior to further medical or
laboratory visits or legal proceedings.
Subsequent medical follow-up visits are required in at least eight
days and then within three weeks in order to obtain samples. 38.
In the view of the IACHR, the document summarized above contains
clear and detailed information, and shows that an in-depth professional
examination was done of the three victims involved in this case. The medical evidence was presented in a timely fashion and in
the manner required. Despite
this, it was not challenged or even considered within the framework of
legally valid proceedings in Mexico.
Although the burden of proof lay with the Mexican State in terms of
the processing of this case by the Inter-American Commission, the Mexican
State failed to meet its obligation to disprove the allegations made in a
serious and well-founded manner. The
Inter-American Commission therefore lends complete credence to the medical
certificate issued by Dr. Guadalupe Peña Millán on June 29, 1994 in San
Cristóbal de las Casas, Chiapas. 39.
The United Nations Commission on Human Rights recently defined a
series of principles that must be taken into account by medical
professionals in investigating reports related to torture.[18]
According to these principles, the conduct of doctors should, at
all times, be in keeping with "the strictest ethical guidelines"
and the consent of the person to be examined should be obtained.
Examinations shall take place in accordance with medical practices,
and "never in the presence of security agents or other government
officials."
The "reliable report" to be prepared immediately by
medical experts should include, at a minimum, the following information: (i)
Circumstances of the interview: name of the subject and name
affiliation of those present at the examination; the exact time and date;
the location, nature and address of the institution (including, where
appropriate, the room) where the examination is being conducted (e.g.
detention center, clinic, house, etc.); the circumstances of the subject
at the time of the examination (e.g. nature of any restraints on arrival
or during the examination, presence of security forces during the
examination, demeanor of those accompanying the prisoner, threatening
statements to the examiner, etc.); and any other relevant factor; (ii)
History: a detailed record of the subject's story as given during
the interview, including alleged methods of torture or ill-treatment, the
times when torture or ill-treatment is alleged to have occurred and all
complaints of physical and psychological symptoms; (iii)
Physical and psychological examination: records of all physical and
psychological findings on clinical examination including appropriate
diagnostic tests and, where possible, color photographs of all injuries; (iv)
Opinion: an interpretation as to the probable relationship of the
physical and psychological findings to possible torture or ill treatment.
A recommendation for any necessary medical and psychological treatment
and/or further examination should be given; (v)
Authorship: the report should clearly identify those carrying out
the examination and should be signed. 40.
The medical reports, the parameters of which are defined by the
United Nations, must be confidential and must be delivered to the alleged
victim or representative appointed by that person.
It adds "the report should also be provided in writing, where
appropriate, to the authority responsible for investigating the allegation
of torture or ill-treatment." 41.
The medical examination done of the González Pérez sisters falls
within the parameters established by the United Nations.
Indeed, it relates the circumstances under which the interview took
place with the level of detail necessary, with data that is sufficiently
precise and consistent; it includes the professional interpretation
regarding the possible reasons for the injuries noted, contains a
recommendation regarding appropriate treatment, and identifies the doctor,
who indicates that she is available to provide any clarification
necessary. 42.
The IACHR establishes, on the basis of the unchallenged report and
other evidence available, that Ana, Beatriz, and Celia González Pérez
were subjected to illegal interrogation, accompanied by physical abuse
that included the rape of the three sisters.
These acts were perpetrated on June 4, 1994 in Altamirano, Chiapas,
by a group of military officers during the time that the sisters were
illegally deprived of their liberty.
The context in which these events took place also leads us to
conclude that the acts were committed in a bid to intimidate the three
women because of their alleged ties with the EZLN.
Furthermore, the IACHR establishes that, as a result of the
humiliation created by this abuse, the González Pérez sisters and their
mother had to flee their habitual residence and their community. 43.
Article 5(1) of the American Convention states that "every
person has the right to have his physical, mental, and moral integrity
respected."
Article 5(2) of that international instrument clearly prohibits
torture and guarantees respect for the human dignity of persons who have
been deprived of their liberty.
The American Convention to Prevent and Punish the Crime of Torture
defines this aberrant practice: Torture
shall be understood to be any act intentionally performed whereby physical
or mental pain or suffering is inflicted on a person for purposes of
criminal investigation, as a means of intimidation, as personal
punishment, as a preventive measure, as a penalty, or for any other
purpose. Torture shall also be understood to be the use of methods upon a
person intended to obliterate the personality of the victim or to diminish
his physical or mental capacities, even if they do not cause physical pain
or mental anguish. 44.
Furthermore, Article 11 of the American Convention guarantees every
individual the right to respect of this privacy and recognition of his
dignity, and states that "no
one may be the object of arbitrary or abusive interference with his
private life, his family, his home, or his correspondence, or of unlawful
attacks on his honor or reputation." 45. Sexual violence committed by members of the security forces of a State against the civilian population constitutes, in any situation, a serious violation of the human rights protected under Articles 5 and 11 of the American Convention, as well as the guidelines of international humanitarian law. In fact, in its final verdict in the Celebici case, the International Criminal Tribunal for the former Yugoslavia (ICTY) expressly stated that "there can be no doubt that rape and other forms of sexual assault are expressly prohibited under international law."[19] The United Nations Special Rapporteur on violence against women explains that "rape during warfare has also been used to terrorize populations and induce civilians to flee their homes and villages." She also adds that “the consequences of sexual violence are physically, emotionally and psychologically devastating for women victims."[20] 46.
The IACHR points out that the Inter-American Convention on the
Prevention, Punishment and Eradication of Violence against Women (Belém
do Pará Convention) guarantees all women the right to a life free of
violence.[21] 47.
In international law, rape is a form of torture under certain
circumstances.
The IACHR confirmed this in the case of a woman who was abused and
harassed for her alleged participation in an armed dissident group: Rape
produces physical and mental suffering for the victim.
In addition to the violence suffered at the time that it is
perpetrated, victims usually sustain injuries and in some instances become
pregnant. Being
the object of this kind of abuse also produces psychological trauma
resulting from their humiliation on the one hand and victimization on the
other, and from the condemnation of members of their community if they
report the mistreatment to which they were subjected. Raquel
Mejía was raped in order to inflict personal punishment on her and to
intimidate her.
Her testimony reveals that the person who sexually abused her told
her that both she and her husband were wanted for subversive activities.[22] 48.
The United Nations Special Rapporteur against torture has indicated
that rape is a method of physical torture that is used in some instances
to punish, intimidate, and humiliate.[23]
Using
similar language, the European Court of Human Rights stated: Rape
of a detainee by an official of the State must be considered to be an
especially grave and abhorrent form of ill treatment given the ease with
which the offender can exploit the vulnerability and weakened resistance
of his victim.
Furthermore, rape leaves deep psychological scars on the victim
which do not respond to the passage of time as quickly as other forms of
physical and mental violence.[24] 49.
The concept has been developed in recent years, particularly in
cases referred to the International Criminal Tribunal for the former
Yugoslavia.
In the Furundzija case, this tribunal stated: As evidenced by international case law, the reports of the United Nations Human Rights Committee and the United Nations Committee against Torture, those of the Special Rapporteur and the public statements of the European Committee for |