Women Victims of Sexual Torture in Atenco vs Mexico Series C No. 371
A selection of key paragraph(s) can be found below the document.seriec_371_ing
204. Therefore, the Court concludes that, in this case, the police agents used the detained women’s bodies as instruments to transmit their message of repression and condemnation of the protest measures employed by the demonstrators. They objectified the women to humiliate, dominate and instill fear in the voices of dissent against their powers of command. Sexual violence was used as just one more weapon in the repression of the protest, as if, together with the tear gas and the anti-riot gear, it was merely an additional tactic to achieve the purpose of dispersing the protest and ensuring that the State’s authority was not challenged again. This type of conduct in the maintenance of public order, more than reprehensible, is absolutely unacceptable. Sexual violence has no place and should never be used as a way of controlling public order by the law enforcement agents of a State bound by the American Convention, the Convention of Belém do Pará and the Inter-American Convention against Torture to pursue “by all appropriate means and without delay, policies to prevent, punish and eradicate” violence against women.
240. This Court has established that, in the case of collective detentions, the State must substantiate and prove, in the specific case, the existence of sufficient evidence to reasonably suppose the criminal conduct of the individual and that the detention is strictly necessary. Therefore, the detention cannot be based on a mere suspicion or personal perception that the detainee is a member of a specific group.335 In particular, in the context of demonstrations or social protests, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association has indicated that “[t]he presence of a few people engaging in violence in and around a protest does not authorize police to brand the entire protest nonpeaceful. It does not give the State carte blanche to use force against or carry out indiscriminate arrests.” 336 In such cases, violent conduct should not be presumed, and “[a]ssembly organizers should not be held liable for the violent behaviour committed by others. Instead, police have the duty to remove violent individuals from the crowd in order to allow protesters to exercise their basic rights to assemble and express themselves peacefully.”337
241. In summary, the Court considers that, to avoid arbitrariness in collective detentions, States must: (i) individualize and separate the conducts of each of the persons detained to prove that there are reasonable indications, based on objective information, that the conduct of each detainee meets the requirements for detention established in domestic law in keeping with the Convention; (ii) ensure that the detention is necessary and proportionate to guarantee a purpose permitted by the Convention, such as the general interest, and also (iii) ensure that detentions are subject to judicial control, in addition to the other conditions established in Article 7 of the American Convention.
251. This Court has indicated that, for deprivation of liberty not to become arbitrary, it must meet the following standards: (i) its purpose must be compatible with the Convention; (ii) it must be appropriate to meet the stated purpose; (iii) it must be necessary; in other words, it must be absolutely essential to achieve the desired purpose and there is no less severe measure in relation to the right affected; (iv) it must be strictly proportionate, so that the sacrifice inherent in the restriction of the right to personal liberty is not exaggerated or disproportionate in relation to the advantages obtained by this restriction and compliance with the purpose sought, and (v) any restriction of personal liberty that is not based on sufficient justification, permitting an evaluation of whether it is in keeping with the conditions indicated, will be arbitrary and, therefore, will violate Article 7(3) of the Convention. 349 The Court also reiterates that the only legitimate purpose for the deprivation of liberty of the accused is to ensure that he or she will not hinder the development of the proceedings or evade justice.350 Risks to the proceedings should not be presumed, but must be verified in each case, based on real and objective circumstances relating to the specific case.351
254. Furthermore, the representatives argued that “after having been deprived of their liberty unlawfully, the victims remained detained for days or even years.” In this regard, the Court has indicated that ordering preventive detention requires considering the proportionality of this measure based on the evidence and the facts investigated. If there is no proportionality, the measure will be arbitrary. Article 7(3) of the Convention reveals the State’s obligation not to restrict the liberty of a detainee more than is strictly necessary to ensure that he or she will not hinder the development of the investigations or evade justice. The Convention is violated when a person whose criminal responsibility has not been established is deprived of their liberty for an excessive length of time, which is therefore disproportionate. This is equal to punishing them in advance.353
275. Furthermore, the Court considers that, in cases where there are indications of torture, the medical examination of the presumed victim should be performed with their prior and informed consent, without the presence of law enforcement or other State agents. Also, on becoming aware of acts of violence against a woman, a complete and detailed medical and psychological examination should be performed immediately by appropriate trained personnel, of the sex preferred by the victim insofar as this is possible, and the victim should be advised that she may be accompanied by a person of confidence if she so wishes. This examination should be performed in accordance with protocols specifically designed to document evidence in cases of gender-based violence.367 In addition, the doctors and other health care personnel have the obligation not to take part, either actively or passively, in acts that constitute participation or complicity in torture or other cruel, inhuman or degrading treatment; they have the obligation to record in their reports the existence of evidence of ill-treatment, if applicable, and must take steps to notify possible abuse to the corresponding authorities or, if this entails possible risks to the health professionals or their patients, to authorities outside the immediate jurisdiction. Similarly, the State must guarantee the independence of medical and health care personnel responsible for examining and providing care to detainees.368
301. Despite the foregoing and, based on the principle that a criminal act is always personal, the State failed to comply with its obligation to investigate, at the very least, the criminal responsibility of the superiors in the chain of command, by not investigating their possible responsibility by guilt (negligence or imprudence) with regard to the victims’ injuries that were verified, because these were crimes that were obviously established in domestic law, also based on direct guilt and, in this regard, even in the most favorable hypothesis for the superiors, the said injuries were not absorbed by any crime they might have committed that required violence.
356. The Court also requires that the State must establish an independent observatory at the federal level to follow up on implementation of the policies on accountability and the monitoring of the use of force of the Federal Police and the police of the state of Mexico, which can include the participation of members of civil society. This observatory must also produce information that leads to relevant institutional improvements. To this end, the State must generate information systems that permit: (i) evaluating the effectiveness of the existing mechanisms to supervise and monitor police operations before, during and after the use of force, and (ii) providing feedback on the required institutional improvements, based on the information obtained from the observatory. To comply with this measure, the State must provide evidence of the creation of the observatory, with the characteristics described, as well as its operationalization. However, the Court will not monitor its implementation.