I/A Court H.R., Case of González et al. (“Cotton Field”) v. Mexico. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 16, 2009. Series C No. 205.

Non official brief

 

This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2010-2-e.pdf

 

Headnotes:


When the murder of a girl or woman takes place in a context of gender-based violence, the State has an obligation to adopt the measures necessary to verify whether the specific murder that it is investigating is related to that context.


States should adopt comprehensive measures to comply with their obligation of due diligence in cases of violence against women. In particular, they should establish an appropriate legal framework for protection that is enforced effectively, as well as prevention policies and practices that allow effective measures to be taken in response to complaints. The prevention strategy should be comprehensive: it should prevent risk factors and strengthen State institutions so that they can respond effectively. The State should adopt preventive measures in specific cases in which it is evident that particular women and girls may be victims of violence. These measures should take into account that in cases of violence against women, the States have, in addition to the general obligation established in the American Convention, a greater obligation arising from the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women ("Convention of Belém do Pará").


When the State is aware that there is a real and imminent risk that particular victims of forced disappearance will be sexually abused, subjected to ill-treatment, and killed because they occurred in a context of heightened risk for women, an obligation of strict due diligence arises. Adequate procedures should exist for reporting disappearances, and those procedures should result in an immediate and effective investigation. Exhaustive search activities must be conducted during the first hours and days, and authorities must take prompt immediate action by ordering, without delay, the necessary measures to determine the whereabouts of the victims or the places where they may have been retained. Authorities should presume that a disappeared person has been deprived of liberty and is still alive until there is no longer any uncertainty as to her fate.


The obligation to investigate effectively has a wider scope when dealing with the case of a woman who is killed or mistreated, or whose personal liberty is affected, within a general context of violence against women. Where an attack is based on gender, it is particularly important that the investigation is pursued with vigor and impartiality, taking into account the need to continuously reassert society's condemnation of gender-based violence and to maintain the confidence of women in the ability of authorities to protect them from the threat of such violence.


Investigators at crime scenes must, at a minimum: photograph the scene and any other physical evidence, as well as the body as it was found and after it has been moved; gather and conserve samples of blood, hair, fibers, threads and other clues; examine the area for footprints or other evidence; and prepare a detailed report on the crime scene, the measures taken by investigators, and the location of evidence gathered. Due diligence in the legal and medical investigation of a death requires that a precise history of the chain of custody of each item of forensic evidence be kept.


Allowing those responsible for serious irregularities in the investigation of cases of violence against women to continue in their functions or, worse, to occupy positions of authority may generate impunity and conditions that allow the context of violence to persist or worsen. Judicial ineffectiveness when dealing with individual cases of violence against women encourages an environment of impunity that facilitates and promotes the repetition of acts of violence in general and sends a message that violence against women is tolerated and accepted as part of daily life.


Once it is shown that the application of a rule clearly affects a higher percentage of women than men, the State must show that this is the result of objective factors unrelated to any discrimination on grounds of gender. Indifference to claims of gender-based violence reproduces that violence and constitutes discrimination with respect to access to justice.


Gender stereotyping refers to a preconception of the personal attributes, characteristics or roles that correspond or should correspond to either men or women.


The subordination of women can be associated with practices based on persistent socially-dominant gender stereotypes, a situation that is exacerbated when the stereotypes are reflected, implicitly or explicitly, in policies and practices and, particularly, in the reasoning and language of the judicial police. The creation and use of stereotypes becomes one of the causes and consequences of gender-based violence against women.


Summary:

 

I. Between September and October 2001, three women, two of them minors, disappeared in Ciudad Juarez, Mexico. These murders were perpetrated in a context of discrimination and violence against women in Ciudad Juarez, as well as high levels of impunity with respect to crimes motivated by gender. On 6 November 2001, the women's bodies were found in a cotton field with signs that they had suffered sexual violence. Before their remains were found, State authorities had merely registered the disappearances and prepared missing-persons posters, taken statements, and sent an official letter to the Judicial Police. There is no evidence that the authorities had circulated the posters or made more extensive inquiries into reasonably relevant facts provided in the statements taken. Also, various irregularities occurred in the investigation of the murders; among other things, State authorities had mishandled evidence at the scene of the crime, the performance of autopsies, and the identification of the bodies, incurred in unjustified delays, and failed to follow lines of inquiry that took into account the context of violence against women. Finally, no public officials were investigated in connection to these irregularities.


The Inter-American Commission on Human Rights filed an application against the State of Mexico on 4 November 2007, alleging violations of Article 4 ACHR (Right to Life), Article 5 ACHR (Right to Humane Treatment), Article 8 ACHR (Right to a Fair Trial), Article 19 ACHR (Rights of the Child) and Article 25 ACHR (Right to Judicial Protection) in connection with Article 1.1 ACHR (Obligation to Respect Rights) and Article 2 ACHR (Domestic Legal Effects), as well as a failure to comply with Article 7 of the Convention of Belém do Pará.


The representatives asked the Court to declare that the State was also responsible for violations of Article 7 ACHR (Right to Personal Liberty) and Article 11 ACHR (Right to Dignity and Honor), also in relation to Articles 1.1 and 2 ACHR and Articles 7, 8 and 9 of the Convention of Belém do Pará. The State admitted to the existence of a context of violence against women in Ciudad Juarez, as well as to irregularities in the "first stage" of investigations, which lasted from 2001 to 2003. It also accepted responsibility for the violation of the rights to personal integrity, judicial protection, and access to justice of the victims' next of kin. However, it challenged the Court's jurisdiction over alleged violations of the Convention of Belém do Pará.


II. In its Judgment of 16 November 2009, the Court first found that it had jurisdiction over alleged violations of Article 7 of the Convention of Belém do Pará; however, it did not have jurisdiction to examine alleged violations of Articles 8 and 9 thereof.


Additionally, the Court found insufficient evidence to support the alleged participation of State agents in the disappearances and killings. Therefore, it found no violation of the State's duty under Article 1.1 ACHR to respect the rights contained in Article 4 ACHR (Right to Life), Article 5 ACHR (Right to Personal Integrity) and Article 7 ACHR (Right to Personal Liberty). However, the Court also ruled that Mexico had failed to act with the diligence required to adequately prevent the violations committed against the victims once it had received notice of their disappearance. Thus, the State had failed to comply with its duty under Article 1.1 ACHR to guarantee the rights to life, personal integrity, and personal freedom of the three victims under Articles 4.1, 5.1, 5.2 and 7.1 ACHR; its obligation to adopt necessary legal provisions under Article 2 ACHR; as well as its obligations under Article 7.b and 7.c of the Convention of Belém do Pará.


Furthermore, the Court found that the State failed to fulfill its obligation to investigate the violations committed against the victims after they were found, given the irregularities in the handling of evidence, autopsies, and identification of the bodies, unjustified delays, the failure to take into account the context of gender-based crimes, and the nonexistence of investigations into officials' negligent conduct. Thus, the Court ruled that Mexico violated Article 8.1 ACHR (Right to a Fair Trial) and Article 25.1 ACHR (Judicial Protection) in connection with Articles 1.1 and 2 ACHR and Article 7.b and 7.c of the Convention of Belém do Pará, to the detriment of the victims' next of kin.


Additionally, the Court ruled that because gender stereotypes used by authorities contributed to the context of violence against women, the State violated the obligation of non-discrimination contained in Article 1.1 ACHR, in relation to Articles 4.1, 5.1, 5.2 and 7.1 ACHR, to the detriment of the three victims that were disappeared, as well as the right of their families to access to justice established in Articles 8.1 and 25.1 ACHR.


Moreover, because it had failed to demonstrate that it had response mechanisms or public policies that would grant the institutions involved the means necessary to guarantee the rights of the girls, the State also violated the rights of the child under Article 19 ACHR, in connection to Articles 1.1 and 2 ACHR, to the detriment of the two victims who were under 18 years of age.


Finally, due to the irregular and deficient actions of authorities upon receiving notice of the victims' disappearance, their lack of diligence in determining the identities of the bodies and returning them to their next of kin, the circumstances and causes of the deaths, the lack of information on the ensuing investigations, and the treatment of the families during the entire process, among other things, the State violated Articles 5.1 and 5.2 ACHR, in relation to Article 1.1 ACHR, to the detriment of the victims' next of kin.


The Court found it improper to examine whether the State violated the right to the protection of honour and dignity enshrined in Article 11 ACHR because the allegations relating to the violation of that Article were already examined in relation to Article 5 ACHR.


Accordingly, the Court ordered the State to investigate the disappearances, taking into account the context of gender-based violence, and the harassment of the victims' families; remove all obstacles impeding an effective investigation; divulge the investigation's results; and identify and sanction those officials who caused irregularities in the prior investigations.


The Court also ordered the State, inter alia, to standardise its protocols, manuals, and investigative standards for crimes relating to disappearances, sexual violence, and the killing of women; modify its response mechanism for reports of missing women and girls; publish the Judgment; acknowledge its responsibility in a public act; establish a monument in memory of the victims; create a website on disappeared women and girls that allows the submission of anonymous tips; create a database on disappeared women and girls containing personal and genetic information; implement permanent education and training programs on human rights and gender for public officials and the general population of the state of Chihuahua; provide medical and psychological care to the victims' families; and pay for damages and costs.


III. Judges Diego García-Sayán and Cecilia Medina Quiroga each wrote a separate concurring opinion.