Discriminatory Torture of an LGBTI Person: Landmark Precedent Set by the Inter-American Court

by | Jul 14, 2020

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About Misha Nayak-Oliver

Misha Nayak-Oliver is an LLM student in International Law at SOAS, University of London.

Citations


Misha Nayak-Oliver, Discriminatory Torture of an LGBTI Person: Landmark Precedent Set by the Inter-American Court”, (OxHRH Blog, July 2020), <https://ohrh.law.ox.ac.uk/discriminatory-torture-of-an-lgbti-person-landmark-precedent-set-by-the-inter-american-court/>, [Date of access].

Earlier this year, the Inter-American Court of Human Rights (IACtHR) issued a landmark judgment Azul Rojas Marín and Another v. Peru (Azul), in which Peru was found responsible for the torture and rape of an LGBTI person by police agents. The Court’s decision has a significant impact on the protection of the LGBTI community against violence around the world.

The Inter-American Commission on Human Rights (IACHR) and IACtHR have been at the forefront of the protection of LGBTI rights; see Advisory Opinion 24/17 on Gender identity, and equality and non-discrimination with regard to same-sex couples, and cases such as Atala Riffo and daughters v. Chile and Duque v. Colombia. Against this background, the case of Azulis a historical development.

The case concerns Azul Rojas Marín, a citizen of Peru. In 2008, whilst living as a gay man, Azul was arbitrarily arrested by Peruvian police officers. While in detention at the police station, Azul was robbed of her belongings, verbally abused, physically beaten, stripped and raped with a truncheon by three police officers due to her sexual orientation. Following her release, Azul filed a criminal complaint with the Peruvian authorities for rape, abuse of authority and torture against the officials responsible. The prosecuting authorities opened an investigation for rape and abuse of authority. It concluded there was no indication that the officers raped Azul. The investigation into rape and abuse of authority was closed. Notably, the prosecuting authorities did not open an investigation for torture.

REDRESS, together with the National Coordinator for Human Rights (CNDDHH) and the Centro de Promoción y Defensa de los Derechos Sexuales y Reproductivos (PROMSEX) exhausted all possibility of obtaining domestic redress and brought Azul’s case to the attention of the IACHR on 14 April 2009. The case was found admissible on 25 November 2014. On 1 December 2016, the case became the first case of torture against an LGBTI person heard by the Commission. In 2018, the Commission recommended that the State should: provide reparation to Azul and her mother Juana Rosa Tanta Marín, including payment of compensation, repair of material and moral damage, and a public apology for the victims; effectively investigate, with due diligence and within a reasonable time, the sexual violence; provide the administrative, disciplinary or criminal measures corresponding to the actions or omissions of the state officials who contributed to the denial of justice; provide free medical and psychological treatment; and adopt non-repetition mechanisms, including training programs for all officials who have contact, or are in charge of investigations, with victims of violence due to prejudice (including sexual and other violence against the LGBTI population).

Peru failed to present any proposals for comprehensive reparation. As a result, on 22 August 2018, the IACHR submitted the case to the IACtHR. The hearing was in August 2019, and the judgment issued on 12 March 2020. The IACtHR declared that Peru was internationally responsible for the violation of the rights to personal liberty, personal integrity, privacy, not to be subjected to torture, judicial guarantees and the judicial protection of Azul. The Court also held that Peru was responsible for the violation of Azul’s mother’s right to personal integrity, she died in 2017.

The Court made groundbreaking findings. This is the first case in which the IACtHR, or any human rights court, finds that the purposive element of the definition of torture incorporates discrimination based on sexual orientation and gender identity. This is the first time the IACtHR analyses the concept of violence motivated by prejudice. The IACtHR held that the State has a duty to investigate violence motivated by discrimination against LGBTI people. The State was ordered to provide reparation measures for the individual victims (Azul and Azul’s mother), and society to avoid repetition of the event and tackle structural discrimination. Lastly, the IACtHR found the attack not only injured the legal rights of the victim but also threatened the freedom and dignity of all LGBTI people.

The impact of this judgment is far-reaching for the LGBTI Community. In Peru, and for other states falling under the Court’s jurisdiction, the standard in Azul will be binding. The decision may be applied in an upcoming case referred to the IACtHR by the IACHR, which concerns the murder of a trans woman in Honduras. More broadly, the case of Azul prompts reflection on the development of jurisprudence in other regional courts and may guide and enrich decisions outside of the Inter-American system.

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