Sexual orientation-based torture: One year since the judgment of the Inter-American Court case of Azul Rojas Marín
Written by Alejandra Vicente*
In March of 2020, the Inter-American Court of Human Rights (IACtHR) issued an emblematic judgment in the court case of Azul Rojas Marín and other Vs. Peru, establishing legal standards with the potential of reducing the levels of violence suffered by the LGBTI community in the Americas and globally. The court ordered Peru to implement a series of reparation measures, including important guarantees of non-repetition. Although a year later the implementation of the reparation measures has been minimal, the decision has had a significant impact both inside of the continent and beyond.
The story of Azul Rojas Marín
Azul Rojas Marín is a transgender woman who identified as a gay man at the time of the events. In 2008, she was detained by members of the Peruvian police in the evening on her way home. Some of the policemen knew Azul. They insulted her and made derogatory comments about her sexual orientation. She was forcibly taken to the police station, where they detained her for almost six hours without officially registering her arrest. Azul was forcibly undressed, repeatedly beaten and raped anally with a baton. The insults and derogatory comments about her sexual orientation continued throughout this time. She was released early the next day.
Azul reported the events to the authorities, but they did not believe her and thus did not adequately investigate her claims. Different judicial staff revictimized Azul. For example, during the crime scene reconstruction procedure, Azul was forced to confront her perpetrators, who mocked her. The prosecutor, without Azul’s consent, was present during the medical forensic examination and made comments to influence the outcome of the report. After numerous obstacles, her complaint was dismissed. To date, no one has been held accountable nor convicted for the crimes against her.
Development of emblematic standards
Due to the situation of impunity in the case, REDRESS, the National Coordinator for Human Rights in Peru and Promsex came together to present a petition before the Inter-American Commission on Human Rights (IACHR) in 2009. The IACHR issued a report in 2018 which found the Peruvian State responsible for various violations. Given that Peru did not comply with the recommendations set out in the report, the case was submitted to the IACtHR. The Court issued its judgment in March 2020, reaching important conclusions about the facts and the law.
The arbitrary arrest of LGBTI people
In its decision, the Court found that Azul’s detention was not carried out in accordance with the domestic Peruvian law that regulates the detentions based on identification purposes. Applying the criteria set out by the United Nations Working Group on Arbitrary Detention and by expert witness María Mercedes Gómez, the Court considered that the absence of motive under the law to justify Azul’s detention, as well as the existence of discriminatory elements, showed that she was detained on the basis of her sexual orientation; this automatically made her arrest arbitrary in nature.
The development of this standard can be crucial in combatting the arbitrary arrests of LGBTI people based on sexual orientation or gender identity, including in the context of measures taken to combat COVID-19 or in situations of political instability.
Torture on discriminatory grounds
The IACtHR found that Azul was anally raped whilst in detention. It reached this conclusion on the basis of different pieces of evidence, including Azul’s statements, the medical exams and the analysis of the clothing that Azul was wearing at the time of the events (para. 165). It characterized her treatment as torture because the elements of intent, severity and purpose had been proven. An important development is that the Court expanded the list of specific purposes to include discrimination on the basis of sexual orientation or gender identity of the victim. On the basis of the opinions of experts Juan Méndez and María Mercedes Gómez, the Court concluded that the sexual violence that included anal rape, along with the derogatory comments, demonstrated the specific motivation to discriminate (para. 163). Furthermore, it classified the conduct as a hate crime given that the violence took place due to prejudice (para. 165).
States have the duty to investigate violence motivated by discrimination against the LGBTI community
Reiterating its jurisprudence on due diligence in cases of sexual violence, the Court incorporated new elements in relation to violence against LGBTI people. In this sense, it stated that when investigating acts of violence, States must take all reasonable measures to establish whether the violence was motivated by prejudice and discrimination (para. 196). The State must gather all evidence and issue reasoned, impartial and objective decisions. Authorities must not omit suspicious events that might be indicative of violence motivated by discrimination (para. 196).
Implementation and impact of the decision in the case of Azul
The IACtHR ordered integral reparations for both the individual and social harms. From an individual perspective, it recognized Azul and her mother as victims in the case and ordered a financial compensation for both the material and immaterial harms they suffered. The Court also ordered the public acknowledgment of responsibility by the State and rehabilitation measures for the physical and mental harms suffered by Azul (para. 236).
The measures ordered by the Court are of great importance to combat structural discrimination caused by hate crimes. The Court ordered Peru to adopt a new binding protocol for the effective criminal investigation of cases of violence against members of the LGBTI community (para. 242). Additionally, Peru must train judicial staff and the police force on LGBTI rights and on investigating with due diligence. Finally, the authorities must establish an official registry of all cases of violence against LGBTI people that includes disaggregated data (para. 252).
More than a year after the judgment, the Peruvian State has just begun the process of publication of the judgment and the provision of health care services, and the implementation of these measures is still underway. Despite this, the Court's decision has had a positive impact as a measure of satisfaction for Azul, in addition to opening the way on this issue in the region and beyond.
The decision of the IACtHR vis-à-vis other national, regional and international procedures
Azul’s case is not an isolated case in the protection of LGBTI rights by the Inter-American system. Both the IACHR and the Court have been at the forefront of this field, as seen in the Advisory Opinion 24/17 and the cases of Atala Riffo and daughters Vs. Chile and Duque Vs. Colombia. Notwithstanding, Azul’s case goes a step further and complements other key cases of the ECtHR such as M.C and A.C Vs. Rumanía and Identoba and others Vs. Georgia (para. 67), where the ECtHR found that Article 3 of the European Convention on Human Rights (prohibition against torture and inhumane treatment) had been violated with respect to individuals who had participated in peaceful demonstrations in favor of LGBTI people. In both cases, the State was found responsible for not protecting the protesters against homophobic violence and for not carrying out effective investigations.
Following the ruling in Azul’s case, the ECtHR has taken firmer steps to expand the protection of LGBTI people. In Aghdgomelashvili and Japaridze Vs. Georgia, the tribunal found for the first time a substantive violation of Article 3 of the Convention due to the ill-treatment by the police when carrying out a search of the premises of an LGBTI organization. Subsequently, in B. and C. Vs. Suiza, the tribunal ruled for the first time in a case of non-refoulement that the omission of the State to consider the risk of torture and inhumane treatment of LGBTI people in the country of origin, can result in a violation of Article 3.
From a national perspective, the Mexican Supreme Court of Justice recently adopted a Protocol to Judge with a Gender Perspective that incorporates the standards developed in Azul’s case. At the regional level, Azul’s case has been followed by that of Vicky Hernández and others Vs. Honduras, which is pending before the IACtHR and where the Court will examine for the first time the extrajudicial killing of LGBTI people during the 2009 coup in Honduras.
For his part, the United Nations Independent Expert on Sexual Orientation and Gender Identity has highlighted the importance of Azul’s case in the fight against hate crimes in the region and globally.
Thus, the case of Azul has shed light on a key issue that until a few years ago was invisible in the region and minimally dealt with globally. The extremely high levels of violence against LGBTI people make the implementation of the standards contained in this ruling more relevant than ever.
* Alejandra Vicente is Legal Director at REDRESS and member of ReLeG.
** Photo: Promsex.
*** The opinions expressed in this blog are the sole responsibility of their authors and do not necessarily represent the views of all members of ReLeG.