I/A Court H.R., Case of Gutiérrez Hernández et al. v. Guatemala. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 24, 2017. Series C No. 339.

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 – Mayra Angelina Gutiérrez Hernández was a university professor. On 7 April 2000 she did not undertake her usual Friday work trip to another city. Two days later, a colleague and her brother reported her missing to the National Civil Police and her brother indicated that a man with whom she had had a relationship might be responsible. The public prosecutor´s office began an investi­gation which remained open as of the date of the Inter-American Court´s judgment. In April and May 2000 the victim´s representative submitted two habeas corpus petitions to a court, which granted the petitions and ordered an investigation by the public prosecutor. The public prosecutor submit­ted a third habeas corpus petition but this was refused as the investigation was already under way. Finally, in December 2000 the Supreme Court ordered the Human Rights Ombudsperson to carry out a special investigation, granting him the same powers and duties as the public prosecutor. The Ombudsperson´s mandate ended in 2013. All of the investigations focused their efforts on establishing the possible responsibility of the victim´s former partner, leaving aside other possible hypotheses as to her disappearance, in particular, those that might implicate the participation or acquiescence of State agents.

 

Law

 

(a) Articles 3 (right to juridical personality), 4 (right to life), 5 (right to personal integrity) and 7 (right to per­sonal liberty) of the American Convention on Human Rights (ACHR), in relation to Articles I and II of the Inter-American Convention on Forced Disappearance of Persons – The Inter-American Court analysed the reasons given by the representatives in support of their hypothesis that Ms Gutiérrez had been the victim of an enforced disappearance: (i) in 1982 and 1985, during the Guatemalan internal armed con­flict, two members of her family had been forcibly disappeared; (ii) her name had appeared in a mili­tary log that had been declassified in the year 2000; and (iii) she had participated in an investigation relating to child trafficking in Guatemala that had been used in a report by the UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography. The Inter-American Court found that, on their own, those elements were insufficient to establish that Ms Gutiérrez had been deprived of her freedom by State agents or with their acqui­escence. Therefore, it did not declare the State responsible for the alleged enforced disappearance and found no violation therefor.

 

Furthermore, the Court found no violation of the State´s duty to prevent violations of Ms Gutiérrez´s rights to life and personal integrity, given that: (i) it was not proven that at the time of her disappear­ance the State was aware or should have been aware of rising rates of violence against women and femicide in Guatemala; thus, there was no obligation of strict due diligence in her search on the part of the State; and (ii) State agents had not been notified of prior threats, risks, or requests for protection in favour of Ms Gutiérrez; thus, at the time of her disappearance, there were insufficient elements to establish that she was in real and immi­nent risk of harm. Therefore, the Court found no violation of Articles 4 and 5 of the ACHR and held that the authorities’ response to her disappearance would be analysed in relation to the effectiveness of the investigations.

 

Conclusion: no violation (unanimously).

 

(b) Articles 8(1) (right to a fair trial) and 25(1) (right to judicial protection), in relation to Articles 1(1) (obliga­tion to respect and ensure rights and non-discrimina­tion) and 24 (equality before the law) of the ACHR, as well as Article 7(b) of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (“Belém do Pará Conven­tion”), to the detriment of Ms Gutiérrez Hernández and her family – First, the Inter-American Court con­cluded that from the initial phases of the investiga­tion there had been a lack of due diligence on the part of the authorities in following up on the infor­mation gathered. Additionally, the authorities had used stereotyped language when referring to Ms Gutiérrez and these stereotypes and prejudices had affected their objectivity, as they had centred their investigation on her personal relationships and life­style, setting aside other lines of investigation. In particular, the authorities had focused on the pos­sibility that this was a “crime of passion,” a term that shifted the blame for the disappearance from the aggressor to the victim. The lack of a rigorous and exhaustive investigation had allowed for impunity for the unreasonable period of time over seventeen years. Additionally, this was not an isolated case in Guatemala, as other cases had shown a tendency on the part of the authorities to discredit victims and blame their fates on their lifestyle, mode of dress, personal relationships or sexuality. Thus, the State had violated Articles 24 and 1(1), as well as Articles 8(1) and 25 of the ACHR, in relation to Article 1(1) thereof and to Article 7(b) of the Belém do Pará Convention.

 

Second, the Court found that despite the fact that three habeas corpus petitions had been filed on behalf of Ms Gutiérrez, the public prosecutor had been put on notice of her disappearance, and a special investigation had been undertaken by the Human Rights Ombudsperson, the State had not had a diligent strategy of investigation that took into account the complexities of the case. There­fore, the State had violated Articles 8(1) and 25 of the ACHR, in relation to Article 1(1) thereof.

 

Conclusion: violation (unanimously).

 

(c) Reparations – The Inter-American Court estab­lished that the judgment constituted per se a form of reparation and ordered that the State: (i) effec­tively conduct the investigation within a reasonable time, free from gender stereotypes, and continue and/or open the appropriate criminal proceedings in order to identify, prosecute, and if applicable, sanction those responsible for Ms Gutiérrez’s disap­pearance, as well as determine her whereabouts; (ii) publish the judgment and its official summary; and (iii) pay compensation in respect of non-pecuniary damage, as well as costs and expenses.