I/A Court H.R., Case of Espinoza Gonzáles v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 20, 2014. Series C No. 289.

Non official brief

 

 [This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

 

 

Facts – Between 1980 and 2000 Peru was engaged in a conflict between armed groups and agents of the military and police forces. During that time acts of torture and other cruel, inhuman or degrading treatment and punishment constituted a systematic and widespread practice and were used as instruments of the counterinsurgency in the context of criminal investigations into crimes of treason and terrorism. Under these circumstances, a widespread and aberrant practice of rape and other forms of sexual violence took place, which primarily affected women and was framed in a wider context of discrimination against women. Such practices were facilitated by the permanent use of states of emergency and the counterterrorism legislation in force at the time, which was characterised by the absence of minimum guarantees for detainees and, inter alia, the power to hold detainees incommunicado and in solitary confinement.

 

In this context, on 17 April 1993 Gladys Carol Espinoza Gonzáles and her partner Rafael Salgado were intercepted in Lima by members of the Abduction Investigations Division (DIVISE) of the Peruvian National Police, who had organised an operation – called “Oriente” – in order to find those responsible for the abduction of a businessman. The couple were taken to the premises of the DIVISE and the following day Gladys Espinoza was transferred to the premises of the National Counterterrorism Directorate (DIN- COTE). During her initial detention and in both institutions, she was subjected to sexual and physical abuse and other mistreatment by officers of the Peruvian National Police, acts that were confirmed later by medical examinations performed during her stay in DINCOTE.

 

In June 1993 a military court convicted Gladys Espinoza of the crime of treason, but in February 2003 the Superior Criminal Chamber of the Supreme Court annulled all the criminal proceedings against her in the military jurisdiction. In March 2004 the National Terrorism Chamber convicted her of the “crime against public peace-terrorism” and in November 2004 the Permanent Criminal Chamber of the Supreme Court of Justice increased her sentence from 15 to 25 years in prison. Since then, she has served time in various penitentiaries, including Yanamayo Prison.

 

Finally, despite the fact that since 1993 several claims had been filed in respect of the acts of violence committed against Espinoza and despite the existence of medical reports recounting her injuries, no investigations were initiated until 2012, after the Inter-American Commission of Human Rights served notice, in 2011, of its Admissibility and Merits Report upon the State.

 

Law

 

(a)     Preliminary objections – The respondent State submitted two preliminary objections alleging a lack of jurisdiction both ratione materiae and ratione temporis of the Inter-American Court to hear alleged violations of Article 7 of the Inter- American Convention on the Prevention, Punishment and Eradication of Violence against Women (“Belém do Pará Convention”). The Court rejected the first preliminary objection, considering that Article 12 of the Belém do Pará Convention granted jurisdiction to the Inter-American Court by not exempting from its application any of the rules and procedures established for individual communications. In contrast, it upheld the second preliminary objection in part, declaring itself unable to rule on acts that had occurred prior to 4 June 1996, the date Peru ratified the Belém do Pará Convention.

 

Conclusion: first preliminary objection rejected, second preliminary objection upheld in part (unanimously);

 

(b)     Article 7 (personal liberty) in relation to Articles 1(1) (non-discrimination) and 2 (domestic legal effects) of the American Convention on Human Rights (ACHR) – The Inter-American Court found the State internationally responsible for the violation, to the detriment of Gladys Carol Espinoza Gonzáles, of the following paragraphs of Article 7, in relation to Article 1(1) of the ACHR: (a) Article 7(1) and 7(2) because of the lack of an adequate record of the detention; (b) Article 7(1) and 7(4) because she was not informed of the reasons for her detention or notified of the charges against her, in accordance with the standards established under the ACHR; (c) Article 7(1), 7(3), and 7(5) due to the absence of judicial control of the detention for at least 30 days, which meant that the detention became arbitrary; and (d) Article 7(1) and 7(6), in relation also to Article 2, owing to the impossibility of filing an habeas corpus petition or any other protective measure while Decree Law 25.659, which established the inadmissibility of protective measures for detainees, suspected or accused of crimes of terrorism, was in force.

 

Conclusion: violation (unanimously).

 

(c)      Articles 5(1), 5(2) and 11 (humane treatment and privacy) in relation to Article 1(1) of the ACHR and Articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture (ICPPT)) – The Inter- American Court found that during her arrest, Gladys Espinoza had been beaten and had received death threats, and that the State had not justified the use of force by its agents. Moreover, when she was transferred to the facilities of DIVISE and DINCOTE, she was the victim of cruel, inhuman and degrading treatments and remained incommunicado for about three weeks without access to her family. She was also the victim of torture because of the psychological and physical violence committed against her with the objective of obtaining information in those detention facilities. She had also been the victim of rape and other forms of sexual violence repeatedly and for an extended period. In this regard, what had happened to the victim was consistent with the widespread practice of rape and sexual violence that had primarily affected women during the armed conflict, thereby constituting torture. Based on these facts, the Inter-American Court found a violation of Article 5(1) and 5(2) in relation to Article 1(1) of the ACHR and Articles 1 and 6 of the ICPPT. It also found a violation of Article 11(1) and 11(2) with respect to the rape and sexual violence.

 

Additionally, while in the Yanamayo Penitentiary between 1996 and 2001, Espinoza had suffered cruel, inhuman, and degrading treatment due to: (i) the conditions of detention; (ii) the detention regime applicable to detainees accused and/or convicted of terrorism and treason; (iii) the absence of specialised, adequate and opportune medical attention, given the progressive deterioration of the victim’s health, as evidenced by the medical reports prepared at the time; and (iv) the extent of the use of force during a police search in August 1999. The Inter-American Court affirmed that sexual violence should never be used by state security forces when exercising the use of force.

 

Conclusion: violation (unanimously).

 

Article 1(1) (non-discrimination) in relation to Articles 5 and 11 of the ACHR – The widespread use of sexual violence by the security forces constituted torture and gender-based violence because it affected women by the mere fact of being women. In this context, the body of Gladys Espinoza as a woman was used to obtain information about her partner and to humiliate and intimidate both. These acts confirmed that State agents used sexual violence and the threat of sexual violence against the victim as a counterinsurgency strategy. As a result, Espinoza had been the victim of individualised discriminatory treatment due to the fact that she was a woman, in violation of Article 1(1), in relation to Articles 5(1), 5(2) and 11 of the ACHR, and Articles 1 and 6 of the ICPPT.

 

Conclusion: violation (unanimously).

 

Articles 8 and 25 (fair trial and judicial protection), in relation to Article 1(1)(non-discrimination) of the ACHR – The Court determined that Peru had violated Articles 8(1) and 25 in relation to Article 1(1) of the ACHR and had failed to fulfill its obligations under Articles 1, 6 and 8 of the ICPPT and Article 7(b) of the Belém do Pará Convention (as of the date of ratification), because of the unjustified delay in initiating investigations into the acts committed against Gladys Espinoza, as well as the fact that neither the statements taken from her nor the corresponding medical reports were in accordance with applicable international standards for the collection of evidence in cases of torture and sexual violence, in particular, those related to the collection of declarations and the conducting of medical and psychological evaluations connected with the acts of violence carried out against the victim. The Inter-American Court set out guidelines for the way that victim interviews and medical and psychological exams should be carried out in cases of torture and/or sexual violence. It also set out guidelines for the conduct of medical professionals charged with attending to possible victims of such crimes and determined that States must ensure that such professionals are able to maintain their professional  independence.

 

In addition, the respondent State had failed to comply with its obligation under Article 1(1), in relation to Articles 8, 25 and 2 of the ACHR, Articles 1, 6 and 8 of the ICPPT and Article 7(b) of the Belém do Pará Convention, due to the stereotyped evaluation of evidence carried out by the Permanent Criminal Chamber of the Supreme Court in 2004, and its consequent failure to order an investigation of the violence alleged, all of which constituted discrimination in access to justice for reasons of gender. The Inter-American Court recognised and rejected the gender stereotype that considers women suspected of having committed crimes as intrinsically unreliable or manipulative, especially in the context of criminal proceedings. In addition, it noted that a guarantee of access to justice for women victims of sexual violence must be the provision of rules for the assessment of evidence, so that stereotypical statements and innuendoes are avoided. Such rules had not existed in the present case. Finally, the Inter-American Court concluded that in Peru, the grave pattern of sexual violence against women detained due to their alleged participation in crimes of terrorism and treason was made invisible, which constituted an obstacle to the prosecution of such acts, favouring impunity and constituting gender dis- crimination in access to justice.

 

Conclusion: violation (unanimously).

 

(d)     Reparations – The Inter-American Court established that its judgment constituted per se a form of reparation and ordered the State to: (i) open, promote, conduct, continue and conclude, as appropriate and with due diligence, appropriate criminal investigations and proceedings, in order to identify, prosecute and, if applicable, punish those responsible for the serious violations of Espinoza´s personal integrity; (ii) provide free and immediate medical and psychological or psychiatric treatment, as appropriate, to the victims if re- quested; (iii) publish the judgment and its official summary; (iv) develop protocols so that cases of torture, rape, and other forms of sexual violence are properly investigated and prosecuted in accordance with the standards specified in the judgment; (v) incorporate the standards established in the judgment into permanent education and training programs aimed at those in charge of criminal prosecution and judgment; (vi) implement a mechanism that will allow all women victims of the widespread practice of rape and other forms of sexual violence during the armed conflict to have free access to specialised medical, psychological and/or psychiatric rehabilitation; (vii) pay the amounts stipulated in the judgment as compensation for non-pecuniary damage and the reimbursement of costs and expenses; and (viii) reimburse the Victims’ Legal Assistance Fund.