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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) brought before the Inter-American Court of Human Rights (IACHR) Case 12.982, Azul Rojas Marín and another, concerning Peru.

The case relates to the illegal, arbitrary and discriminatory deprivation of liberty of Azul Rojas Marín, starting on February 25, 2008, allegedly for purposes of identification. The Commission determined that although the possibility of retention for identification purposes was provided for in Peruvian law in certain circumstances, this standard imposed a number of formal and substantive requirements that were not met in the case. In addition, the IACHR pointed out that there are no elements in the case that would justify detention in the possible prevention of a crime but that, on the contrary, the deprivation of liberty was based on subjective assessments that are not related to this purpose. Likewise, the IACHR considered that from the moment Azul Rojas Marín was intercepted by state officials, they not only exercised physical violence against her, but also verbally attacked her with repeated references to her sexual orientation through denigrating expressions.
      
The Commission also considered the existence of serious acts of physical and psychological violence, including various forms of violence and rape against Azul Rojas Marín to be accredited. The Commission found that there were sufficient elements to consider that because of the nature and manner in which such violence was exercised, there was a special viciousness with the identification or perception of Azul Rojas Marín, at the time, as a gay man. The Commission considered that what happened to the victim should be understood as violence based on prejudice and that the constituent elements of torture are also present.
       
Finally, the Commission concluded that the facts of the case lie in impunity for a number of factors, including the failure to comply with the duty to investigate with due diligence from the initial stages of the investigation. In addition, the IACHR determined that throughout the investigation the victim was disqualified and her credibility questioned in a revictimizing manner both by the authorities who took evidence and in the framework of the decisions that led to the dismissal of the case. The Commission found that the State violated the obligations of care and protection of a victim reporting sexual violence, with the aggravating factor of prejudice against LGBT people. The Commission also determined the effects on Azul Rojas Marín's mother.

In the Report on the Merits, the Commission recommended that Peru provide full reparation to Azul Rojas Marín and her mother, Juana Rosa Tanta Marín, for the human rights violations against them. This reparation should include measures of pecuniary compensation and satisfaction to compensate for both material and moral damage, as well as a public act of recognition of responsibility by the State for the victims. In addition, the IACHR recommended that the sexual violence suffered by Azul Rojas Marín, described as torture in the report, be investigated effectively, with due diligence and within a reasonable period of time. It was specified that investigations and prosecutions should be conducted on the basis of the standards described in the report. The Commission also recommended that appropriate administrative, disciplinary or criminal measures be taken against the actions or omissions of State officials who contributed to the various factors of denial of justice identified in the report. In addition, the Commission recommended that medical and psychological or psychiatric treatment, as appropriate, be provided free of charge, immediately and for as long as necessary, to the victim in the present case, if and when requested by her.

The IACHR also recommended adopting measures of non-repetition, including ensuring that article 205 of the Code of Criminal Procedure is not used by police authorities in an abusive and discriminatory manner, through, for example, effective accountability mechanisms; adopting legislative, administrative or other measures to ensure access to justice in cases of violence against LGBT persons; designing training and education programs for all legal practitioners who have contact with and/or are in charge of investigating cases of hate violence, including sexual violence; and training law enforcement officials and, in general, officials in charge of the custody of persons deprived of their liberty in the absolute prohibition of torture and sexual and other violence against the LGBT population, as well as sending a clear message of repudiation of such acts. Finally, the IACHR urged the State to ratify the Inter-American Convention against All Forms of Discrimination and Intolerance approved by the OAS General Assembly on June 5, 2013.

The Inter-American Commission submitted the case to the jurisdiction of the Court on August 22, 2018, because although the State reported on some measures to comply with the recommendations on measures of non-repetition and on the reopening of the criminal investigation, it did not present any proposal for comprehensive reparation in favor of Azul Rojas Marín, despite the gravity of the sexual torture of which she was a victim.

This is the first case that the IACHR has submitted to the Inter-American Court on violence against LGBT people. The case offers the Court the opportunity to deepen its jurisprudence on cases of physical, psychological and sexual violence by State security agents, with the particularities of prejudicial violence, including particular standards of evidence and of investigation and punishment of those responsible. The Inter-American Court may also rule on the different cases of stigmatization, disqualification and discrimination that a victim may suffer in a case such as this one in the context of the criminal investigation. On the other hand, the Honorable Court may develop its jurisprudence in matters of personal liberty, with respect to the powers of the State security forces to detain persons for the purpose of identification or crime prevention and the procedural and substantive safeguards necessary to ensure that such powers are not contrary to the American Convention.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 189/18