Sandra Luz Román Jaimes v Mexico

Sandra Luz Roman Jaimes v Mexico

CEDAW Committee, 24 October 2022. CEDAW/C/83/D/153/2020

Sexual violence against a girl under 18; domestic violence with a state perpetrator police officer; gender-based forced “disappearance” of a girl under 18.

The applicant is the mother of Ivette Melissa Flores Román a victim of “disappearance.” Ivette Melissa Flores Román was a child of 16 when she had a baby with an older man, who was a police officer with a history of violence against women. She was subjected to ill-treatment when she went to live with the perpetrator, (para 2.1) “she was not allowed to leave the house, was forced to stop communicating with her family and to change the way she dressed and was not allowed to look at anyone when she went outside with her partner. She was insulted and beaten by her partner when she disobeyed these orders. After being held incommunicado for 40 days at the home of her partner’s parents, she informed the author (her mother) that her partner’s father […], would let her go her once her baby daughter turned 1 year old.”

Ivette returned to her parents’ home in order to start school again. She received many threats from the perpetrator and his family, including death threats and coercive monitoring of her mobile phone.

As well as protection for the perpetrator because of his job as a police officer, there were also the possibility that he was involved with organized crime.

On 20 October 2012, Ivette Melissa Flores Román and the wife of one of the applicant’s sons, Alba Itzel Osorio Mota, were abducted by five armed men. Immediately, family members reported their disappearance to the local prosecution service, also the Attorney General of the State of Guerrero, the national police force, and the army. Four days later, Alba Itzel Osorio Mota was released, but not Ivette. Inquiries continued, in 2013 the case was reported to the office of the special prosecutor on gender-based violence. However, that office eventually declined jurisdiction because the gendered aspect was considered less relevant than the links of the enforced “disappearance” to organized crime. Some two years later, Alba Itzel Osorio Mota was interviewed and was able to name some of the men who abducted her and Ivette. However, no leads were followed up and a variety of different local and national authorities took up investigations which did not lead to anything substantive, then declined jurisdiction.

In 2015, the applicant Sandra Luz Román Jaimes approached the national human rights commission, which “found that there had been various omissions and suggested that the Office of the Attorney General of the Republic conduct an administrative inquiry into the officials responsible for those omissions and investigate the possible participation of public officials in the disappearance of the author’s daughter.” (2.15). In 2018, some six years after Ivette Melissa’s enforced “disappearance” the applicant brought an action of “amparo” (seeking protection and assistance from the state) in which she

“Condemned the stereotyping that had affected how the investigation was approached, the lack of any standards to ensure gender-sensitive criminal investigations, and the systematic failures and ineffectiveness of the investigation into her daughter’s disappearance.”(paragraph 2.16)

Having exhausted prolonged and ineffective avenues for domestic remedies, the CEDAW Committee agreed that this was definitely a case of gender-based violence, with the consistent failure of the state to take effective action to investigate and prosecute violence, and that (paragraph 7.3) continued failure to do so entrenches “a culture of impunity of the most extreme forms of gender- violence.”

The CEDAW Committee also found (paragraph 7.6) that “persons linked to criminal organizations benefited from the authorization, support, acquiescence or omissions of the State party with respect to the disappearance of the author’s daughter” finding the state responsible, taking into account the patterns of gender-based disappearance.

The CEDAW Committee found a violation of the CEDAW Convention, on the following grounds:

(a) the decision not to investigate the events as acts of gender-based violence.

(b) the stereotyping that affected how the investigation was approached.

(c) the absence of provisions in criminal law guaranteeing the gender-responsive investigation of acts of organized crime; and

(d) the systematic failures and ineffectiveness of the investigation into her daughter’s disappearance.

The CEDAW Committee noted that the investigation unit for organized crime did not have a gender-related policy and that this was a significant gap in the administration of law.

Recommendations

Alongside a specific call to ensure a prompt, effective, independent and impartial investigation into Ivette Melissa Flores Román’s enforced “disappearance” which includes the safe and dignified participation of the applicant in this case, her mother, the CEDAW Committee recommended comprehensive training and implementation of gender-based standards for investigation, prosecution and prompt location of missing women and girls.

The CEDAW Committee also directed that the new investigation takes “into account the context in which it occurred and with special emphasis on generating scenarios and lines of investigation that take into account motivations potentially related to gender. Identify those responsible and thereafter take appropriate measures to prosecute them and have them sanctioned.” The Committee also called on the state to “exhaustively investigate and punish the negligence and collusion of the public authorities involved in the enforced disappearance of Ms. Flores Román.” (paragraph 9(a)(iii)-(iv)

Finally, the CEDAW Committee called on the state to “[a]dopt and implement a national policy to prevent and eradicate disappearances of women which includes due diligence standards, a differentiated approach and a human rights-based approach as cross-cutting components. The policy should be comprehensive, address and combat the causes of enforced disappearances of women and be aimed at ensuring non-repetition. (paragraph 9(b)(iii)

Learning from other institutions

The applicant noted that that the Committee on Enforced Disappearances, the Working Group on Enforced or Involuntary Disappearances and the Inter-American Court of Human Rights have established that there is a close link between disappearances and acts of violence against women, such as sexual violence. (paragraph 3.1) citing CED/C/MEX/FAI/1, para. 47; CED/C/MEX/FAI/1, para. 47; A/HRC/WGEID/98/2, para. 8; Inter- American Court of Human Rights, López Soto et al. v. Venezuela, judgment of 26 September 2018, para. 145.

The state also failed in its duty to abide by the “Alba Protocol” which was a guideline for practice relating to apparent abductions or enforced “disappearances.” The Alba Protocol was adopted as a result of cases in the Inter-American Court of Human Rights:

“In 2014 the First Chamber of the Supreme Court established that all courts must dispense gender-responsive justice, in view of the arguments set forth in the judgment of the Inter-American Court of Human Rights in the case of González et al. v. Mexico and based on national and international standards. The Supreme Court found that integrating a gender perspective was integral to ensuring the right of women to a life free of violence and discrimination, and that consideration needed to be given to situations of disadvantage that, owing to gender issues, led to discrimination and impeded equality. In 2016, the First Chamber of the Supreme Court established that when a claim of gender-based violence is made, the judge must take into account the facts to verify whether such violence has taken place. The State party argues that, as demonstrated by the Supreme Court’s ruling, it has taken action to comply with its international obligations under article 2 of the Convention.”

Relevance

This is a striking case as it illustrates the double legal liability of state officials, in this case a police officer, when they perpetrate acts of violence in the family. The position of power due to their official position makes it much harder for those affected by their violence in the family to seek justice. Often victims know that the perpetrator might increase the violence, knowing that they have reported the issue to the authorities. Victims also fear that other state officials, particularly the police who will be charged with investigating those crimes of violence, might treat the perpetrator more leniently because they are colleagues. There is a particular risk of secondary victimisation and increased violence.