ACCESS TO JUSTICE FOR WOMEN VICTIMS OF VIOLENCE IN THE AMERICAS

I.          INTRODUCTION

A.         Obstacles women encounter when seeking redress for acts of violence: an analysis of the present situation

1.        The IACHR observes that regional and international human rights protection systems have identified the right of women to live free from violence and discrimination as a priority challenge.  The adoption of international human rights instruments that protect women’s right to live free of violence reflects a consensus among the States and their acknowledgment of the discriminatory treatment that women have traditionally received in their societies.  The fact that the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (hereinafter the "Convention of Belém do Pará") has been ratified by more member States of the inter-American system than any other convention,[1] and that the majority of the American States have ratified the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter the "CEDAW") and its optional protocol, bespeaks a consensus within the region that violence against women is a widespread and open problem whose prevention, investigation, punishment and redress warrant State action.

2.        The case law of the inter-American system holds that de jure and de facto access to judicial guarantees and protections is essential to eradicating the problem of violence against women and is a necessary precondition if States are to be in full compliance with the international obligation they have freely undertaken to practice due diligence in responding to this very serious human rights problem.  However, the work done by the IACHR and the Rapporteurship on the Rights of Women (hereinafter the "Rapporteurship" or the "Women’s Rapporteurship") reveals that victims of gender-based violence often do not have access to adequate and effective legal remedies by which to denounce the violence they have suffered.  The vast majority of these incidents go unpunished, leaving women and their rights unprotected.  The Commission observes that most cases involving violence against women are never punished, which serves to perpetuate the practice of this serious human rights violation.

3.        This report has been prepared to examine the main obstacles that women encounter when they endeavor to avail themselves of judicial remedies, with proper guarantees.  It draws conclusions and makes recommendations urging the States to be duly diligent about offering an effective judicial remedy to incidents involving violence against women.  The analysis contained in this report includes information that a variety of sectors sent to the Commission, including the administration of justice systems, officials and representatives of government, civil society, the academic sector and women of various races, ethnic origins and socioeconomic condition, all as part of a research project that the Rapporteurship undertook in the last two years with financial support from the Government of Finland.[2] 

4.        During preparation of this report, the IACHR circulated a questionnaire among the member States of the OAS and experts from civil society, international organizations and the academic sector.  A total of 23 OAS member States answered the questionnaire, more responses than any Commission questionnaire has ever elicited.  A variety of experts from the region who are active in the administration of justice, international organizations and civil society entities also answered the questionnaire.  Five meetings of experts were organized:  in Washington, D.C. (April 19-20, 2005), Peru (August 1-2, 2005), Costa Rica (August 11-12, 2005), Argentina (September 12-13, 2005) and Jamaica (September 29-30, 2005).[3]   These meetings were regional and subregional in scope and were attended by over 130 experts, representatives of the government, the administration of justice system, civil society, international organizations, and the academic sectors.  The information compiled during the project’s implementation has been coupled with the work of the inter-American system, which includes jurisprudence, thematic hearings held at headquarters,[4] thematic reports, country report chapters on the subject of women, and in loco visits organized both by the IACHR and the Women’s Rights Rapporteurship.  

5.        This report defines "access to justice" as de jure and de facto access to judicial bodies and remedies for protection in cases of acts of violence, in keeping with the international human rights standards.  The IACHR has held that for access to justice to be adequate, the formal existence of judicial remedies will not suffice; instead, those remedies must be effective for prosecuting and punishing the violations denounced and in providing redress.  As this report will establish, an effective judicial response to acts of violence against women includes the obligation to make simple, rapid, adequate and impartial judicial recourses available, without discrimination, for the purpose of investigating and punishing these acts and providing redress, so that in the end these acts do not go unpunished. 

6.        The premise of this report is that at the national level, the judicial branch of government is the first line of defense for protecting women’s individual rights and freedoms, which is why its effectiveness in responding to human rights violations is so vital.  An adequate judicial response is essential if women victims of violence are to have a remedy against acts of violence and if those acts are not to go unpunished.  In this report, the administration of justice is understood to include the judicial branch of government (in all its parts, the courts and administrative divisions), the police and forensic medicine services in urban and rural areas alike, whether their jurisdiction is national or local.

7.        This report’s examination of the obstacles that women encounter when attempting to access justice in the Americas takes into account the inherent structural problems that the Commission has identified in the administration of justice systems in the region.  The IACHR has repeatedly expressed concern over the problem of impunity and how ineffective the administration of justice systems have been in its prevention.[5]  The Commission has also identified another set of structural problems besetting the justice systems in the Americas.  These include the precarious state of the judicial branch of government, attacks on the independence of the judicial branch and its impartiality, the inadequate budget earmarked to the judicial branch, difficulties that low-income people must overcome in order to be able to avail themselves of the justice system, the instability and impermanence inherent in judicial appointments in some countries of the region, the removal of judges without regard for the basic due process protections, and the threats that judges, prosecutors and witnesses receive, a problem compounded by the inadequate protective measures provided by the State.[6]  The Commission has also pointed to the particular difficultly that the traditional targets of discrimination -women, indigenous peoples and Afro-descendants- have in accessing the administration of justice systems.[7]

8.        These structural problems are particularly onerous for women, given the discrimination they have historically suffered.  The IACHR has established that the discriminatory socio-cultural patterns and behaviors that still persist are detrimental to women and prevent and obstruct the enforcement of existing laws and the effective punishment of acts of violence.  This is the reality despite the fact that the American States have identified this challenge as one of their priorities.  Legislative, political and institutional changes in American societies have outpaced the rate of change in a culture that tolerates violence and discrimination.  The way in which officials in the administration of justice systems react to cases involving violence against women reflects the fact that these discriminatory socio-cultural patterns are still very much intact.

9.        By the same token, it is worth noting that 19 countries of the hemisphere have introduced a number of reforms in their administration of justice systems.  The gender issues discussed and analyzed in this report have evolved against this backdrop of change.  Since the decade of the nineties, a considerable number of Spanish-speaking countries in the Americas have taken measures to convert their criminal justice systems from inquisitorial proceedings based on pre-written arguments, to accusatorial systems that rely on oral arguments.  The Justice Studies Center of the Americas (hereinafter "CEJA"), which is tracking these changes closely, has listed some of the principal changes as follows:

Replacing inquisitorial systems with accusatorial systems, assigning criminal prosecution to the public prosecutor’s office, introducing a system of public hearings and trials conducted by oral argument, creating new institutions or strengthening others, giving the parties involved a more important role in the process and in some cases creating alternative mechanisms for settling differences.[8]

10.     The definition of "violence against women" used as a frame of reference in the present report is the one that appears in the Convention of Belém do Pará, as follows:

any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere.[9]

to include physical, sexual and psychological violence:

a)          that occurs within the family or domestic unit or within any other interpersonal relationship, whether or not the perpetrator shares or has shared the same residence with the woman, including, among others, rape, battery and sexual abuse;

b)         that occurs in the community and is perpetrated by any person, including, among others, rape, sexual abuse, torture, trafficking in persons, forced prostitution, kidnapping and sexual harassment in the workplace, as well as in educational institutions, health facilities or any other place (…)

11.     The following are some of the most basic principles of this Convention regarding the concept of violence that will be used in the analysis contained in the present report:

-       The Convention expressly recognizes the relationship between gender-based violence and discrimination, and indicates that violence of that kind is a reflection of the historically unequal power relations between women and men, and that the right of every woman to a life free of violence includes the right to be free from all forms of discrimination and to be valued and educated free of stereotyped patterns of behavior;[10]

-         It establishes that violence affects women in a variety of ways and obstructs their exercise of other basic civil and political rights, as well as economic, social and cultural rights;[11]

-        The Convention stipulates that States Parties shall act with due diligence to prevent, investigate and punish violence against women that occurs in public and private, within the home or the community, whether perpetrated by individuals or agents of the State;[12]

-        It provides that States Parties shall take special account of the vulnerability of women to violence by reason of, among others factors, their race or ethnic background or their status as migrants, refugees or displaced persons. Similar consideration is to be given to women subjected to violence who are pregnant or disabled, of minor age, elderly, socio-economically disadvantaged, affected by armed conflict or deprived of their freedom.[13] 

12.     In other words, the inter-American system recognizes that violence against women and its root cause, discrimination, is a serious human rights problem that has negative consequences for women and the community that surrounds them.  Violence and discrimination are encumbrances to the full recognition and enjoyment of women’s human rights, including their right to have their lives and their physical, mental and moral integrity respected.  

13.     The principles that underpin the definition of "violence against women" in the Convention of Belém do Pará are reinforced by the definition of violence included in Recommendation 19 of the Committee on the Elimination of Discrimination against Women, which oversees compliance of CEDAW, a convention whose purpose is to promote de jure and de facto equality between men and women in the exercise of their basic human rights and fundamental freedoms.[14]  The Committee, has written that the definition of discrimination contained in the Convention covers violence against women in all its forms, including:[15]

(…) acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.

14.     Using that framework of analysis, this report concludes that while the States have formally and legally recognized that violence against women is a priority challenge, the judicial response to the problem has fallen far short of its severity and prevalence.  The IACHR has found that in many countries of the region, a pattern of systemic impunity persists with respect to the judicial prosecution of cases involving violence against women. The vast majority of such cases are never formally investigated, prosecuted and punished by the administration of justice systems in this hemisphere.    

15.     The States, international organizations and civil society organizations have provided the Commission with statistics showing that relatively speaking, very few investigations are conducted and convictions won in cases of violence against women.  In its response to the questionnaire, Chile reported that in 2004, a total of 236,417 cases of intrafamily violence were reported, yet only 14,149 (5.9%) were ever formally investigated.[16]  About 92% of the cases were closed after the first hearing. Furthermore, since the entry in force of Law 19.325 to address intrafamily violence since 1994, the complaints of intrafamily violence have risen by 8-10%.[17]  In Venezuela’s response to the questionnaire, the State reported that most cases of gender-based violence never reach the sentencing phase.[18]  The Dominican Republic reported that in 2003, 2,345 complaints of intrafamily violence were recorded, 1,036 final judgments were delivered, and only 246 were convictions for violation to law 24-97 addressing intrafamily violence.[19]  In 2004, 1,056 complaints were filed; 502 final verdicts were delivered; and only 188 were convictions.[20]

16.     In Bolivia, an investigation conducted by the administration of justice reveals that in 100% of the case files reviewed that address matters related to the rights of women, about 71.2% were rejected by the prosecutors on the basis of lack of evidence and from these 41% corresponded to sexual crimes.[21]  Gender-based discrimination was also identified in the actions of justice officials toward civil and criminal cases, confirmed in the judicial resolutions, the arguments presented by the plaintiffs, defendants and witnesses, by the public prosecutor’s office and the police.[22] The investigation also reveals that women prosecute more the redress of their rights.[23]

17.     The research conducted by international and civil society organizations also found that most cases of violence against women are never investigated, prosecuted and punished.  In Ecuador, a study done by the Quito-based Centro Ecuatoriano para la Promoción y Acción de la Mujer [Ecuadorian Center for the Advancement and Action of Women] (hereinafter "CEPAM") found that criminal proceedings are conducted on a very small percentage of the complaints filed.  For example, 804 complaints were filed with 16 courts in the city of Guayaquil, yet proceedings were instituted in only 104 cases, which was 12.96% of the complaints filed.[24]  In Nicaragua, one research study did an analysis of 1,077 verdicts delivered in criminal cases involving women’s rights and found that more than half ended in acquittals; in only 8 cases were protective measures ordered pursuant to existing laws.[25] 

18.     Research conducted in Chile, Ecuador and Guatemala found that only a small percentage of cases involving sex-related offenses actually goes to trial in these three countries:  in Chile, an average of only 3.89% of the complaints filed in 2002 actually went to trial; in Ecuador, over a 12-month period 2.75% reached the sentencing phase (after having gone to trial); in Guatemala, 0.33% of the complaints actually went to trial.[26]

19.     Similarly, at its thematic hearings the Commission received reports confirming deficiencies in the prosecution and punishment of acts of violence committed against women.[27]  The reports cite omissions and errors in the investigative proceedings, caused by negligence, bias and insufficient information for a conviction. These reports also point out that the victim is victimized a second time when the authorities are more interested in her private life than in solving the case and punishing the guilty parties.  Some administrative and judicial authorities do not respond with the diligence and deliberateness needed to investigate and prosecute the case and punish the guilty parties. 

20.     Recent in loco visits by the Rapporteurship have provided further confirmation of these findings.  In a number of countries of the region, the Rapporteurship found that most cases involving violence against women have never been punished.  The Rapporteurship’s in loco visit to Ciudad Juárez, Mexico, found that only 20% of the murder cases involving female victims had gone to trial and resulted in convictions. Hence, the overwhelming majority of these cases went unpunished.[28]  During the Rapporteurship’s visit to Guatemala, both State officials and representatives of civil society said time and time again that the administration of justice system had failed to provide an effective response to crimes of violence.  They reported that very few of these cases actually go to trial, leaving the crimes unpunished and making women feel even more insecure.[29]  On the Rapporteurship’s visit to Colombia, a variety of governmental and nongovernmental sources voiced concern over the ineffectiveness of the justice system in prosecuting and punishing cases of violence against women committed as a result of the armed conflict, especially those perpetrated by those engaging in the hostilities and in areas under their control.[30]  

21.     The present report is divided into four parts.  The first examines the human rights standards that apply to the right of women to adequate and effective judicial recourse when they are victims of violence.  The second part of the report is an analysis of the main obstacles that women victims of violence encounter when they attempt to avail themselves of some judicial recourse, with due guarantees.  This section exposes the gaps and irregularities in investigations into acts of violence committed against women; failings in the prosecution and punishment of such cases; the ineffectiveness of the mechanisms to protect women from violence; the barriers women victims encounter when they attempt to avail themselves of judicial protective services; structural problems within the justice systems that encumber the prosecution of cases involving violence against women, and the particularly critical situation of indigenous and Afro-descendent women to access judicial protection services.  This section also examines a number of obstacles related to the content and implementation of the existing civil and criminal laws that challenge the effective punishment of acts of violence against women. 

22.     In response to these obstacles, the third part of the report reviews a number of State efforts to face the problem of violence against women in public policies and the administration of justice sector.  Finally, the fourth part of the report concludes with a series of recommendations urging the States to act with due diligence to improve the judicial response to acts of violence against women.

B.         The report’s legal framework: International provisions and standards that apply to the right of women to access adequate and effective remedies when they are victims of violence

23.     The premise of the inter-American system of human rights is that access to adequate and effective judicial remedies is the first line of defense to protect basic rights, which includes the rights of women victims of violence.  In the Americas, the absolutes of equality and non-discrimination are the core of the inter-American human rights system and of the binding instruments relevant to the present analysis, such as the American Convention on Human Rights (hereinafter the "American Convention"), the American Declaration of the Rights and Duties of Man (hereinafter the "American Declaration") and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (hereinafter the "Convention of Belém do Pará").  These instruments uphold a woman’s right to a simple and effective recourse, with due guarantees, for protection against acts of violence committed against her.  They also establish the State’s obligation to act with due diligence to prevent, prosecute and punish these acts of violence and provide redress.[31]  

24.     The American Declaration and the American Convention have espoused a set of basic principles and obligations pertaining to the right of access to adequate judicial protection.  Article XVIII of the American Declaration and articles 8 and 25 of the American Convention provide that every person has the right to resort to a court and the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal when that person believes his or her rights have been violated.  The protection of these rights is reinforced by the States’ obligation erga omnes to respect the rights and obligations recognized in the Convention, an obligation undertaken with Article 1.1 of the Convention.  The Inter-American Court of Human Rights (hereinafter "Inter-American Court") has expressed the following in this regard:

Article 25 in relation to Article 1(1) of the American Convention obliges the State to guarantee to every individual access to the administration of justice and, in particular, to simple and prompt recourse, so that, inter alia, those responsible for human rights violations may be prosecuted and reparations obtained for the damages suffered… Article 25 “is one of the fundamental pillars not only of the American Convention, but of the very rule of law in a democratic society in the terms of the Convention” ... That article is closely linked to Article 8(1), which provides that every person has the right to a hearing, with due guarantees, … for the determination of his rights, whatever their nature.[32]

25.     Under Article 1.1 of the American Convention, access to effective judicial protection must be guaranteed "without any discrimination."  The right to equal protection of the law is protected under Article 24 of the American Convention.   

1.         The due diligence obligation

26.     The principal objectives of the regional human rights system and the principle of efficacy require that those guarantees be implemented.  Therefore, if exercise of any of these rights is not guaranteed de facto and de jure by States within their jurisdiction, in Article 2 of the American Convention the States Parties have undertaken to adopt such legislative or other measures as may be necessary to give effect to those rights.  Therefore, the States’ duty to provide judicial remedies is not fulfilled merely by making those remedies available to victims on paper; instead, those remedies must be adequate to remedy the human rights violations denounced.[33]  The Inter-American Court has written that:

[t]he absence of an effective remedy to violations of the rights recognized by the Convention is itself a violation of the Convention by the State Party in which the remedy is lacking. In that sense, it should be emphasized that, for such a remedy to exist, it is not sufficient that it be provided for by the Constitution or by law or that it be formally recognized, but rather it must be truly effective in establishing whether there has been a violation of human rights and in providing redress.^[34]

27.     Therefore, the State has an obligation to act with due diligence in responding to human rights violations.  This duty involves four obligations: prevention, investigation, punishment and redress of the human rights violation and the obligation to prevent impunity.[35]  The Inter-American Court has held that:

This obligation implies the duty of States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights.  As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.[36]

28.     Impunity vis-à-vis violations of human rights exists where there is a "failure to investigate, prosecute, take into custody, try and convict those responsible for violations of rights protected by the American Convention." Further, "(...) the State has the obligation to use all the legal means at its disposal to combat that situation, since impunity fosters chronic recidivism of human rights violations, and total defenseless of victims and their relatives."[37]  To prevent impunity, the State has an obligation, under Article 1 of the American Convention, to respect and ensure the rights recognized in the Convention:

The State is obligated to investigate every situation involving a violation of the rights protected by the Convention.  If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction.  The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.[38]

29.     The inter-American human rights system has established that the obligation of the States to act with due diligence in response to acts of violence applies as well to non-State actors, third persons and private parties.  The Inter-American Court has written that:

The State’s international responsibility may also be engaged by acts of private individuals that are not, in principle, attributable to the State. The effects [of the obligations erga omnes, incumbent upon States parties to the Convention, to respect and enforce the standards of protection] extend well beyond the relationship between a State’s agents and the persons subject to its jurisdiction; those effects manifest themselves in the positive obligation the State has to adopt the measures necessary to ensure effective protection of human rights in inter-personal relationships.  The State may also incur responsibility for acts of private individuals when the State, by either the action or omission of its agents serving as guarantors, fails to comply with the obligations erga omnes contained in articles 1(1) and 2 of the Convention.[39]

30.     Elaborating upon that standard for attribution of responsibility, in its judgment on the Case of the Massacre of Pueblo Bello the Court recently wrote that:

[a] State cannot be held accountable for every human rights violation committed by private individuals under its jurisdiction.  Indeed, the erga omnes nature of a State party’s obligations to ensure the rights protected under the American Convention does not imply that it bears limitless responsibility for any act of private individuals.  A State’s duty to adopt measures to prevent harm to and protect private individuals in their mutual relations depends on whether it had knowledge of a real and present danger to a particular individual or group of individuals, and whether it had any reasonable chance of preventing or avoiding that danger. In other words, although the legal consequence of a private individual’s act or omission may be to violate another private individual’s human rights, that violation is not automatically imputable to the State.  The circumstances of each particular case have to be considered, as do the measures taken so that those obligations to ensure are fulfilled.[40]

31.     To determine whether acts of third parties can be attributed to the State as violations for which it is internationally accountable, the Court has followed the reasoning used by the European Court, which is that the State can incur international responsibility for acts committed by third parties when it is shown that the State had knowledge of a real and immediate risk and failed to adopt reasonable measures to prevent it.  The Inter-American Court has cited the European Court’s jurisprudence, as follows:

Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see the Osman judgment cited above, pp. 3159-60, para. 116).[41]

32.     The Convention of Belém do Pará establishes that the due diligence obligation has a special connotation in cases of violence against women.  This Convention reflects a shared hemispheric concern over the gravity of the problem of violence against women, the relationship between that problem and the discrimination that women have historically endured, and the need to adopt comprehensive strategies to prevent, punish and eradicate violence against women.  Despite advances on the legislative front and in public policy, women of the Americas have been and continue to be the victims of discrimination in times of peace and conflict alike.  That discrimination has denied women their right to be equal partners in civil and political affairs.  They have not been treated as equals within the family and have been the victims of and exposed to various forms of psychological, physical and sexual violence.[42] The IACHR has previously reported that the fact that women account for over one half the hemisphere’s population is not reflected at decision-making levels in the political, social, economic, and cultural spheres.[43]  The limited access that women have, especially women victims of violence and discrimination, is the product of this pattern of discrimination and inferior treatment.   

33.     The Convention of Belém do Pará recognizes the critical link between women’s access to adequate judicial protection when denouncing acts of violence, and the elimination of the problem of violence and the discrimination that perpetuates it.  Article 7 of the Convention of Belém do Pará spells out the State’s immediate obligations in cases of violence against women, which include procedures, judicial mechanisms and legislation to avoid impunity:

-           In the administration of justice, the Convention explicitly provides that States must “establish fair and effective legal procedures for women who have been subjected to violence which include, among others, protective measures, a timely hearing and effective access to such procedures.”  They must also “establish the necessary legal and administrative mechanisms to ensure that women subjected to violence have effective access to restitution, reparations or other just and effective remedies (…)”

-           In the area of law, the Convention requires States Parties to include in their domestic legislation “penal, civil, administrative and any other type of provisions that may be needed to prevent, punish and eradicate violence against women and to adopt appropriate administrative measures, where necessary,” and to take “all appropriate measures, including legislative measures, to amend or repeal existing laws and regulations or to modify legal or customary practices which sustain the persistence and tolerance of violence against women.”

-           The State is also required to adopt legal protective measures “to require the perpetrator to refrain from harassing, intimidating or threatening the woman or using any method that harms or endangers her life or integrity, or damages her property.”

34.     In the Convention of Belém do Pará, the States Parties agree to gradually undertake a series of specific measures aimed at ensuring a woman’s right to adequate, effective and prompt access to justice in cases of violence.  They include the following: [44]

-           Developing training of programs for “all those involved in the administration of justice, police and other law enforcement officers as well as other personnel responsible for implementing policies for the prevention, punishment and eradication of violence against women”;

-           Implementing educational activities aimed at heightening the general public’s awareness of "the problems of and remedies for violence against women" and adopting public measures "to modify social and cultural patterns of conduct of men and women, including the development of formal and informal educational programs appropriate to every level of the educational process, to counteract prejudices, customs and all other practices which are based on the idea of the inferiority or superiority of either of the sexes or on the stereotyped roles for men and women which legitimize or exacerbate violence against women."

-           Providing "appropriate specialized [support] services for women who have been subjected to violence, through public and private sector agencies, including shelters, counseling services for all family members where appropriate, and care and custody of the affected children", and

-           Ensuring "research and the gathering of statistics and other relevant information relating to the causes, consequences and frequency of violence against women, in order to assess the effectiveness of measures to prevent, punish and eradicate violence against women and to formulate and implement the necessary changes (...)"

35.     The IACHR examined the principles upheld in the Convention of Belém do Pará in its report on the case of Maria da Penha Fernandes.[45] The case was filed by a victim of domestic violence in Brazil, whose husband’s physical abuse and attempts to murder her tragically left her a paraplegic.  All this happened despite the fact that she had filed a number of complaints with the State.  In its decision on this case, the Commission invoked the Convention of Belém do Pará for the first time and decided that by failing to try, convict and punish the assailant for 15 years, the State had breached its obligation to exercise due diligence to prevent, punish and eradicate domestic violence.[46]  

36.     In that case, having found violations of articles 8 and 25 of the American Convention and of Article 7 of the Convention of Belém do Pará, it was the Commission’s view that a State’s obligation with respect to cases involving violence against women is not merely to prosecute and convict those responsible, but also "to prevent these degrading practices."[47]  With "clear and decisive evidence" to complete a prosecution, there should be no unwarranted delays in ruling on a criminal case, which should be completed swiftly and effectively.[48]  The IACHR found that judicial ineffectiveness vis-à-vis cases of violence against women creates a climate of impunity conducive to domestic violence, "since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts."[49]

37.     In the report on this case, the Commission made a number of concrete recommendations for redressing the wrong done to the victim and putting an end to the State’s condoning of domestic violence.  The following are among the principles underlying its recommendations to the State:  steps must be taken to educate officials in the judiciary and the specialized police so that they understand the importance of not condoning violence against women; educational programs for the general public are also needed; criminal justice proceedings must be simplified so that they can be expedited, but never at the expense of the rights and guarantees of due process; and the number of special institutions to which women victims of violence can turn to file complaints must be increased.[50] 

38.     The Commission has also established that in cases of violence against women, the right to a recourse set forth in Article 25, interpreted in conjunction with the obligation in Article 1.1 and the provisions of Article 8.1, "must be understood as the right of every individual to go to a tribunal when any of his rights have been violated (whether a right protected by the Convention, the constitution or the domestic laws of the State concerned), to obtain a judicial investigation conducted by a competent, impartial and independent tribunal that will establish whether or not a violation has taken place and will set, when appropriate, adequate compensation."[51]  It also pointed to the investigation as a critical phase in cases of violence against women.  The Commission observed that the "importance of due investigation cannot be overestimated, as deficiencies often prevent and/or obstruct further efforts to identify, prosecute and punish those responsible."[52] 

39.     The obligations established in Articles 8 and 25 of the American Convention and Article 7 of the Convention of Belém do Pará pertaining to the investigation, trial and redress of human rights violations can be studied by examining the jurisprudence of the inter-American system for the protection of the human rights of all persons under a State’s jurisdiction.  Accordingly, when the Inter-American Court and the Inter-American Commission assess how effective the internal judicial proceedings are in remedying human rights violations, they look at the entire process into account, including decisions taken at differing levels, in order to thereby ascertain whether all the proceedings and the manner in which the evidence was produced were fair.[53] 

40.     The case law of the inter-American system has underscored the point that the failure to conduct an investigation and punish those responsible constitutes non-compliance with the State’s obligation to ensure the free and full exercise of human rights to the victims and their next of kin, and a failure to keep faith with society’s right to know the truth.[54]  Inter-American case law has highlighted the importance of conducting an immediate, exhaustive, serious and impartial investigation into human rights violations.  The Court has written that the investigation:

[m]ust be undertaken in a serious manner and not as a mere formality preordained to be ineffective.  An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.[55]

41.     The IACHR pointed out that an investigation must be undertaken in an immediate, exhaustive, serious and impartial fashion[56], and it must be aimed at exploring all the possible lines of inquiry to identify the perpetrators of the crime with a view to their subsequent prosecution and punishment.  The State can be held accountable for failing to order, practice or evaluate evidence that may be critical to solving a case.[57] 

42.     The obligation of due diligence to prevent situations of violence, especially where widespread or deeply-rooted practices are concerned, imposes upon the States a parallel obligation.  On the one hard, States should monitor the social situation by producing adequate statistical data for designing and assessing public policies.  On the other hand, States should take into account the policies implemented by the civil society. The obligation undertaken in Article 7.b of the Convention of Belém do Pará must be read in combination with the obligation established in Article 8.h to guarantee that statistics and other relevant data on the causes, consequences and incidence of violence against women are researched and compiled with a view to evaluating the effectiveness of measures to prevent, punish and eradicate violence against women and then formulating and introducing any needed changes.

43.     Statistical data on the problem of violence against women is an important public interest issue.  Hence, States must have appropriate legal and administrative mechanisms to ensure ample access to that information, establish vehicles for circulating it, and encourage public debate and scrutiny of the policies being implemented in that realm.

44.     International experts have identified a set of guiding principles that can be built into any system devised to compile information at the national level in the Americas with a view to gathering statistics on incidents of violence against women.[58]  State agencies charged with compiling national statistics and ministries such as Justice and Health, play key roles in determining what the standards and methods will be for compiling data, in ensuring that the data are obtained on a consistent basis and as often as necessary, and in seeing to it that the data are effectively and promptly circulated.  States must compile that information in partnership and consultation with the various sectors that have the critical data, including the victims themselves, their communities, state centers and agencies tasked with this issue, academia, international organizations, and civil society organizations.  A cooperative relationship between the producers and users of statistics must be institutionalized. 

45.     A number of international and regional organizations, such as the Economic Commission for Latin America and the Caribbean (hereinafter "ECLAC") and other United Nations agencies have devised a set of indicators of violence and discrimination against women and have prepared invaluable studies on these issues that are useful tools for States to use in this area.  Such efforts must be transparent and treat the victim’s safety and privacy as paramount concerns.  The information compiled must be accessible to victims, civil society and the general public, and be delivered in a format intelligible to a variety of audiences. 

2.         Due diligence and access to judicial protection

46.     Both the Inter-American Court and the IACHR have repeatedly held that investigation of cases of human rights violations, which includes cases of violence against women, must be conducted by competent and impartial authorities.  When investigations are not carried out by appropriate authorities, duly trained in gender-related issues, or when those authorities fail to cooperate with each other, the investigations are needlessly delayed and important clues or evidence overlooked, which will be detrimental to any future proceedings on the case.[59]

47.     As for the evidence that must be examined in cases involving violence, international principles stipulate that, as a minimum, all material and documentary evidence and statements of witnesses must be compiled and analyzed.  As the Commission has stated, this is the minimum required in cases of suspicious deaths.[60]  The persons in charge of the investigation must have access to the crime scene.[61]   In homicide cases, proper autopsies must be conducted and specific pieces of evidence must be preserved in cases of suspected sexual assault.[62] 

48.     Also relevant to the analysis done in this report are the obligations undertaken by the States in the international sphere, which spell out their judicial obligations vis-à-vis women victims of violence.  For example, Article 4 of the Declaration on the Elimination of Violence against Women provides that States must exercise due diligence to prevent and investigate acts of violence against women, whether those acts are perpetrated by the State or by private individuals.  It further provides that States must develop "penal, civil, labour and administrative sanctions" in their domestic legislation to redress the wrongs caused to women who are subjected to violence.[63]  Similarly, paragraph 124(d) of the Beijing Platform for Action, [64] adopted by the Fourth World Conference on Women, calls for States to take measures to ensure that women subjected to violence have access to just and effective remedies, including compensation and indemnification.  The United Nations Rapporteur has recently described the principles that are the underpinnings of the due diligence obligation: 

There are certain basic principles that underlie the concept of due diligence.  The State can not delegate its obligation to exercise due diligence, even in situations where certain functions are being performed by another State or by a non-State actor.  It is the territorial State as well as any other States exercising jurisdiction or effective control in the territory that remain, in the end, ultimately responsible for ensuring that obligations of due diligence are met. Related to this point is the notion that due diligence may imply extraterritorial obligations for States that are exercising jurisdiction and effective control abroad.[65]

49.     CEDAW figures prominently among these instruments, as it was crafted for the purpose of achieving women’s de jure and de facto equality with men in the enjoyment of their human rights and fundamental freedoms.[66]  Article 1 of CEDAW features a sweeping definition of "discrimination against women," as follows:

… any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

50.     This definition covers any gender-based differential treatment whose intended purpose or practical effect is to place women at a disadvantage and deny them the full enjoyment of their human rights in public and in private.  As previously noted, the Committee that supervises the implementation of the CEDAW has held that the Convention definition of discrimination includes violence against women.[67]

51.     Recently, the European Court of Human Rights held that to effectively investigate and punish cases of sexual assault, States must consider both the body of evidence and the context in which the sexual assault occurred, and not confine themselves to direct evidence of physical resistance on the part of the victim.[68]  In the case of M.C. v. Bulgaria, the Court found that the State of Bulgaria’s international responsibility had been engaged because it had closed a criminal investigation into the rape of a 14-year old minor when no evidence of the use of force or of physical resistance during the rape was found.[69]  The Court reasoned that the authorities had failed to consider all the circumstances that might have prevented physical resistance on the part of the victim in this case, given the particular vulnerability of a minor in cases of rape and the environment of coercion created by the assailant.  The Court wrote that:

[w]hile in practice it may sometimes be difficult to prove lack of consent in the absence of “direct” proof of rape, such as traces of violence or direct witnesses, the authorities must nevertheless explore all the facts and decide on the basis of an assessment of all the surrounding circumstances.  The investigations and its conclusions must be centred on the issue of non-consent.[70]

52.     International human rights instruments provide that physical evidence must be gathered by specialists trained in the type of violence being investigated, and preferably should be the same sex as the victim.  The victim’s culture and the context in which the assault occurred must be taken into consideration.  If necessary, an interpreter should be made available and must not be a government official.[71]

53.     As for the conduct of members of the judiciary, international principles underscore the importance of a judiciary that decides matters impartially, without restrictions, improper influences, inducements, pressures, threats or interferences of any kind, direct or indirect, from any quarter or for any reason.[72]  In the case of prosecutors, the international principles stipulate that prosecutors are to perform their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination.[73]  International standards also provide that a government is to ensure that lawyers and legal services are available to all persons subject to the State’s jurisdiction, throughout the national territory and without distinction.  Such services are especially intended for socially and economically disadvantaged persons.[74]  Law enforcement officials shall at all times fulfill the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts and upholding the human rights of all persons.[75]  In arriving at a decision on the arrest or detention of a perpetrator, police are to take into account the need for the safety of the victim and others related through family.[76]  States, for their part, must hold police accountable when they do not act in accordance with the rule of law and their code of conduct.[77]

54.     International instruments also feature a set of principles to steer the proceedings of the administration of justice system when dealing with women victims of violence.  The Rules of Procedure and Evidence of the International Criminal Court provide that gender-sensitive measures are to be taken to enable victims of sexual violence to participate and testify at all stages of the proceedings; victims of sexual violence are also to have complete access to information on the proceedings.[78]  A number of international instruments on protection against torture and other cruel, inhuman and degrading treatment underscore the importance of preserving the mental and physical well-being of the victims during the criminal proceedings, which includes the investigative phase.  The Commission has or can invoke this principle in cases involving violence against women, to avoid a re-victimization of the women victims.[79]   In general, measures should be adopted for the duration of the criminal process to protect the safety, privacy and dignity of women victims.[80]  Also, victims should be advised of their rights and of how to exercise them throughout the criminal case, during all its phases.[81]

55.     As for the type of evidence admissible in cases of sexual assault, the International Criminal Court’s Rules of Procedure and Evidence make provision for the importance of not inferring a victim’s consent in rape cases, as the atmosphere of coercion that the assailant can create and a variety of factors can be reasons why a victim may be unable to physically resist her assailant.[82]  The Rules also stipulate that evidence of a victim’s prior sexual conduct is inadmissible.[83]

56.     Under Article 7.d of the Convention of Belém do Pará, States parties undertook to adopt legal measures to require a perpetrator to refrain from harassing, intimidating or threatening the woman or from using any method that could harm or endanger her life or integrity or cause damage to her property.  This provision should be interpreted as one side of the obligation to ensure access to adequate and effective mechanisms of judicial protection, provided for in Article 25 of the American Convention.  One specific dimension of the right to judicial protection is the right to seek effective precautionary protection.  Article 8.d of the Convention of Belém do Pará indicates spells out some of the elements of the type of protective measures that States are required to provide in cases of violence against women, such as appropriate specialized services, including shelters, counseling services for all family members, care and custody of the affected minors.  These specialized services are in addition to court restraining orders or other precautionary measures compelling the assailant to cease and desist and protecting the physical safety, freedom, life and property of the aggrieved women.

57.     In its Report on the situation of human rights defenders in the Americas, the IACHR established certain general principles that should guide the grant of precautionary measures by States.[84]  There, the Commission wrote the following:

1.         Therefore, the right to judicial protection creates an obligation for states to establish and guarantee appropriate and effective judicial remedies for the precautionary protection of rights, including life and physical integrity, at the local level.  Several domestic bodies of law have adopted these remedies through mechanisms such as habeas corpus, amparo, action of tutela, writ of injunction, mandados de securança or individual protection measures, etc.

2.         Given the special nature of these remedies, and the urgency and necessity in which they must operate, some basic characteristics are required if they are to be considered suitable in the sense established by the Commission and the Court. Such characteristics include, for example, that the remedies be simple, urgent, informal, accessible, and processed by independent bodies. It is also necessary that individuals have the opportunity to approach federal or national legal entities when bias is suspected in the conduct of state or local bodies. Likewise, these remedies must enjoy broad, active legitimacy so that they may be pursued by relatives or by public entities such as prosecutors or ombudspersons on behalf of the individuals under threat, without requiring the signature of the latter.  It is also helpful if such remedies can be processed on an individual basis or as collective precautionary actions, in other words, to protect a particular group or one that is identifiable based on certain parameters as affected or at imminent risk.  It is also important to provide for the implementation of protective measures in consultation with the affected parties and with special law enforcement agencies other than those under suspicion, among other provisions.

3.         In this sense, because such actions are designed to protect fundamental rights in urgent cases, the evidentiary procedures should not be the same as that required in ordinary proceedings; the idea is that measures be adopted within a brief time period for the immediate protection of the threatened rights. For example, while in criminal law a threat against life only constitutes an offense upon initiation of the execution of the crime, in a precautionary situation, the protection of the right to life should include protection against any act that threatens that right, regardless of the magnitude or degree of probability of the threat, so long as it is genuine.

58.     International principles also uphold the right of victims of human rights violations to "adequate, effective, prompt and appropriate" reparation for the acts perpetrated against them, proportional to the wrong suffered.[85]  It must be full reparation and include guarantees of restitution, compensation, rehabilitation, satisfaction and non-repetition.[86]

3.         Violence and discrimination

59.     Article 6 of the Convention of Belém do Pará provides that the right of every woman to be free from violence includes the right to be free from all forms of discrimination and the right of women to be valued and educated free of stereotyped patterns of behavior and social and cultural practices based on concepts of inferiority and subordination.  In its previous cases, the Commission established a close correlation between the obligation to guarantee equality and non-discrimination and preventing violence against women.  That being the case, the IACHR looked at what social contexts lend themselves to the commission of violations of women’s rights.  In each case, the Commission found that gender-based violence was a manifestation of custom and practice or evidence of a social structure that relegated women to a position of subordination and inequality and thus left them at a disadvantage.

60.     In the María Eugenia Morales de Sierra case [87] and the Maria Da Penha Fernandes case,[88] the IACHR made express reference to the historically unequal power relations between women and men, which left and still leave women in a position of inferiority vis-à-vis men in society.  The Commission suggested an examination of the traditional dichotomy between private acts and public acts, a dichotomy in which private, domestic, or intimate matters are considered beyond the purview of the State.  In this dichotomy between private and public acts, the family is regarded as the geographic epicenter of domestic matters and a realm into which the State is not to intrude.  The misguided reasoning is that the State should refrain from any interference in family matters out of respect for personal autonomy.  In these two cases, the Commission pointed to the traditional misconceptions about the State’s role in family matters, a notion that implicitly recognizes a hierarchy between the sexes and that condones or tolerates the de facto oppression of women within the family.  The inequality of the sexes and the tolerance of oppression of women are largely perpetuated by the supposed neutrality of the law and public policy and the inaction of the State. 

61.     Thus, in the María Eugenia Morales de Sierra case,[89] the IACHR found that articles 1, 2, 17 and 24 of the American Convention had been violated by virtue of the fact that the provisions of Guatemala’s Civil Code that concern the relationship between husband and wife divided responsibilities between them:  the husband was responsible for sustaining the home financially, while the wife was responsible for caring for home and children.  The Commission found that "far from ensuring the ‘equality of rights and adequate balancing of responsibilities’ within marriage," these provisions institutionalize imbalances in the rights and duties of the spouses.[90]  The Commission concluded that the disputed articles of the Civil Code:

[h]ave a continuous and direct effect on the victim in this case, in contravening her right to equal protection and to be free from discrimination, in failing to provide protections to ensure that her rights and responsibilities in marriage are equal to and balanced with those of her spouse, and in failing to uphold her right to respect for her dignity and private life.[91] 

62.     In this case, the Commission expressed its concern over the serious consequences of discrimination against women and the stereotypes of their roles, which created the potential for violence against women.  It particularly underscored the grave impact that the disputed provisions have on family matters.[92]  The Commission found that the provisions of the Civil Code applied stereotyped notions of the roles of women and men, which perpetuated de facto discrimination against women in the family context.[93]  It therefore concluded that the use of "stereotyped notions of the roles of women and men" is not a suitable criterion for ensuring the equality of men and women and their equal rights and responsibilities within the family. 

63.     In its decision, the IACHR recognized the relationship between gender inequality and the prevalence of gender-based violence, a correlation already recognized in Article 6 of the Convention of Belém do Pará.  It also relied on the principles established in the instruments of the inter-American and international systems for the protection of human rights that address this issue.  It cited its Report on the Status of Women in the Americas,[94] in which it concluded that the women of the region do not enjoy legal equality with men and specifically singled out violence against women as a priority challenge.  In that report, the Commission wrote that:

Women have not yet achieved full juridical equality in every country in the region (…) although formal equality does not guarantee the elimination of instances of discrimination, recognizing it makes it possible to encourage transformations in society, thereby enhancing the authority of this right. (…) [C]ertain countries possess, in greater or lesser measure, laws that restrict and/or discriminate against the civil rights of women in marriage. (…) In many criminal codes, values such as honor, social decency, virginity, chastity, and good morals prevail over values such as the mental and physical integrity of the woman and her sexual liberty, thereby impeding the due protection under the law of victims of such crimes, or compelling them to prove that they resisted in the case of the crime of rape, or subjecting them to interminable procedures that perpetuate victimization. (…) [T]he situations such as those described in which women who are the victims of violence are left unprotected still exist because of a lack of adequate legislation or because the legislation in force is not observed.[95]

64.     In the María Eugenia Morales de Sierra case, one of the sources of law upon which the IACHR relied was General Recommendation No. 19[96] of the Committee on the Elimination of Discrimination against Women, which states that "[l]ack of economic independence forces many women to stay in violent relationships."[97] 

65.     In consequence, the IACHR observes that the unequivocal language used in the Convention of Belém do Pará made it clear that the inter-American system had recognized that gender-based violence was a "manifestation of the historically unequal power relations between women and men."[98]  It also wrote that the traditional attitudes that regard women as subordinate to men or lock them into stereotyped roles, serve to perpetuate widespread practices involving violence or coercion, such as family violence and abuse.  Thus, violence against women is a form of discrimination that seriously impairs women’s ability to exercise and enjoy their rights and freedoms on an equal footing with men.  During the processing of the case and as a direct consequence of it, important amendments were introduced into the Guatemalan Civil Code, one of which was to recognize women’s right to work without explicit permission from their spouses.  

66.     Another case in which the IACHR established the nexus between the discrimination and the violence that women endure is the previously cited case of Maria da Penha Fernandes.[99]  In its decision, the IACHR established the presence of a general pattern of State tolerance of domestic violence and a lack of effectiveness on the part of the judicial branch in prosecuting such cases.  The Commission held that the obligation of the States to act with due diligence goes beyond the prosecution of the case and conviction of the guilty party; it also includes an obligation "to prevent these degrading practices."[100]

67.     In this case, the Commission found that the violence, the ineffectiveness of the Brazilian judicial systems, their misguided application of domestic and international laws, and discrimination were all interrelated. It cited its 1997 special report on Brazil, where the Commission found that "there was clear discrimination against women who were attacked, resulting from the inefficiency of the Brazilian judicial system and inadequate application of national and international rules."[101]  The Commission went on to add that "tolerance by the State organs is not limited to this case; rather, it is a pattern.  The condoning of this situation by the entire system only serves to perpetuate the psychological, social, and historical roots and factors that sustain and encourage violence against women. "[102] 

68.     Other special reports prepared by the Commission’s Rapporteurship on the Rights of Women have also drawn the connection between violence and discrimination.[103]  This was especially true of the report prepared on violence against women in Ciudad Juárez, which was the study in which the Commission probed most deeply into the disturbing correlation between gender-based violence and discrimination. In that report, the Commission concluded that gender-based discrimination was one of the factors that explained why so little was being done to stop the murders of women in Ciudad Juárez and to punish the perpetrators.  The report highlighted the link between women’s subordination and violence:

In this sense, it must be emphasized that, as the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (“Convention of Belém do Pará”) makes clear, violence against women is a manifestation of the historically unequal power relations between men and women.  Violence based on gender originates in and perpetuates those negative power imbalances.  As the Beijing Declaration and Platform for Action adopted by the UN Fourth World Conference on Women sets forth, such violence “is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.”  The lack of due diligence to clarify and punish such crimes, and to prevent their repetition reflects that they are not perceived as a serious problem.  The impunity in which such crimes are then left sends the message that such violence is tolerated, thereby fueling its perpetuation. [104]

69.     The IACHR stresses that violence and non-responsiveness to cases of this type is because of discrimination against women.  As observed in the paragraph cited above, women are in a subordinate position vis-à-vis men. The report states that:

(…) insufficient attention has been devoted to the need to address the discrimination that underlies crimes of sexual or domestic violence, and that underlies the lack of effective clarification and prosecution.  The resolution of these killings requires attention to the root causes of violence against women – in all of its principal manifestations.[105] 

70.     In the decisions and reports discussed here, the IACHR has consistently underscored the States’ obligation to organize the government structure to prevent, investigate and punish acts of violence and discrimination against women and provide them with redress, invoking such instruments as the Convention of Belém do Pará, the American Convention and the Inter-American Convention to Prevent and Punish Torture.  In its reports on the merits of cases such as those of Maria da Penha Fernandes and María Eugenia Morales de Sierra, the Commission has asserted critical aspects of women’s rights, such as their right to live free from violence.  Binding principles have been established that must govern the States’ obligations and be embodied in their laws and policies.  One of those is the States’ duty to effectively and swiftly eradicate acts of various forms of violence against women committed by state and non-state agents alike; the duty to provide effective and impartial remedies to victims of violence; and the obligation to take measures to eradicate discrimination against women and stereotyped patterns of behavior that foster unequal treatment in their societies.  For women, this has meant that they do not have equal access to the rights and benefits gained with political, civil and social progress.[106]

a. The duty to amend discriminatory norms, practices and policies

71.     As part of the obligation of due diligence, Article 7.e of the Convention of Belém do Pará requires that States take all appropriate measures, including legislative measures, to amend or repeal existing laws and regulations or to modify legal or customary practices which sustain the persistence and tolerance of violence against women.  Owing to the obvious relationship between discrimination and violence, Article 7.e must be interpreted as requiring States to amend discriminatory laws, practices and public policies or those whose practical effect is to discriminate against women.  Section II.B of this report examines these kinds of discriminatory laws and regulations.

72.     The articulation of the principle of non-discrimination used when examining gender-related problems can have differing ramifications that denote the scope of the protection afforded.  One formulation of this principle that is narrower in the protection it affords proscribes those laws, practices and policies whereby a man is chosen for a job or position by virtue of the fact that he is a man or because of traits or qualities believed to be inherently male.  One example would be laws or rules that stipulate that only men may study for a professional degree, perform a certain job, or be administrators of conjugal property.  Therefore, in this sense, the principle of non-discrimination holds that persons should not be treated as unequal based on their sex is associated with transactional fairness in the distribution of scarce opportunity among a group of competing candidates in which gender is not a factor.  This approach assumes a world of "autonomous individuals starting a race or making free choices." [107]

73.     In the case of women, this approach to non-discrimination equates sexual equality with equal treatment, and posits that tolerance or recognition of intrinsic differences between men and women in the law is unacceptable. It disregards the fact that men and women may be running different races from differing starting points. What matters most to this position is that the law serves the liberal ends of objectivity and neutrality.  Thus, the gender experts who subscribe to this line of thinking have focused on amending the law to dismantle legal barriers to women being treated like men in the public sphere, the assumption being that the equal treatment requirement will be sufficient to compensate for the disadvantages that women have experienced. [108]

74.     The narrow concept of the principle of non-discrimination, associated with classic liberal thinking, is not sufficient to justify affirmative action measures –a man rejected in a selection process that favors women can claim unfair treatment, too- nor does it adequately call into question those systems that appear neutral in principle –such as a meritocracy- but that in fact serve to perpetuate long-standing discrimination.  Nor is it useful in challenging deeply rooted social concepts about women’s role in society, which make them the primary care-givers and homemakers while excluding them from public spheres such as the workplace, education and politics.

75.     A broader concept of non-discrimination is associated with the idea of ending the subordination of women as a group.  This concept (which some call the principle of anti-subordination[109]) condemns practices that have the effect of creating or perpetuating society a subordinate position for certain disadvantaged groups, such as women.  By this definition of non-discrimination, discrimination against women is unacceptable not just because it presupposes unfair treatment for some individual women, but also because its function is to subordinate women as a group and to thereby create and perpetuate a gender hierarchy.  Discrimination is regarded as one of a number of social factors responsible for the hierarchy of the sexes that leaves women at the bottom of the pyramid. 

76.     A broad interpretation of the principle of non-discrimination encourages an examination of standards and practices that prima facie appear neutral –for example, using criteria such as meritocracy, stature or seniority in a position- and social practices –such as the subtle and widespread practices of instilling the duties of child care and homemaking in women.  The anti-subordination theory also helps justify affirmative action.[110]

77.     Taking the anti-subordination approach to non-discrimination, the social significance and legality of a supposedly neutral law or practice must be evaluated in terms of its impact on the group as whole.  Hence, the eminently group or collective nature of this approach.  In other words, discrimination is present if, for example, a woman is not hired because of what it means, socially and job-wise, to belong to the group that is women.  The discriminatory treatment manifests itself in individual cases, but is deeply rooted in a prejudice against the group.[111]  Structural intervention is needed to undo the gender hierarchy so firmly entrenched and institutionalized in society and so resistant to change.  In other words, intervention has to be geared toward introducing change in basic social realms and institutions, such as justice, politics, the family and the marketplace.

78.     General Recommendation No. 25 of the Committee on the Elimination of Discrimination against Women (CEDAW) states the following:

The Convention goes beyond the concept of discrimination used in many national and international legal standards and norms.  While such standards and norms prohibit discrimination on the grounds of sex and protect both men and women from treatment based on arbitrary, unfair and/or unjustifiable distinctions, the Convention focuses on discrimination against women, emphasizing that women have suffered, and continue to suffer from various forms of discrimination because they are women.[112]

79.     Discrimination can have many faces.  One is the discrimination caused by unequal treatment based on a prohibited or suspect factor that precludes, restricts or adversely affects the exercise of a right. Discrimination of this type can manifest itself when the prohibited or suspect factor is explicitly cited as grounds for separate treatment or exclusion (for example, when a woman is prohibited from practicing a profession or administering property without the husband’s consent). Another form of discrimination occurs when a legal obligation to adopt positive measures established by domestic or international law, is not fulfilled.

80.     In the first type of discrimination, i.e., when gender is used as grounds for unequal treatment, the inter-American system of human rights and the case law of the supreme courts of a number of countries of this hemisphere have held that the discriminatory nature of the restrictive measure or policy is presumed.  Therefore, when those suspect factors are the basis for treating an individual or group differently, they have to be more closely scrutinized to determine whether they are reasonable.[113]

81.     In Advisory Opinion 4/84,[114] the Inter-American Court of Human Rights established the scope of articles 1 and 24 of the American Convention.  There the Court wrote that:

(…) The notion of equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual. That principle cannot be reconciled with the notion that a given group has the right to privileged treatment because of its perceived superiority. It is equally irreconcilable with that notion to characterize a group as inferior and treat it with hostility or otherwise subject it to discrimination in the enjoyment of rights which are accorded to others not so classified. It is impermissible to subject human beings to differences in treatment that are inconsistent with their unique and congenerous character. [115]

82.     While the Court observes that not all inequalities in legal treatment are discriminatory, it adds that the legitimacy of the distinction depends on whether "the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of humankind."[116]  In another opinion, the Court added that if various options are available to achieve an objective, the one that "least restricts the right protected must be selected."[117]  The case law of the Court, therefore, requires a reasonable relationship of proportionality if any distinction is to be made when restricting a fundamental right; the option that least restricts the right should always be chosen.

83.     For its part, the Commission has repeatedly maintained that any restriction based on criteria such as those listed in Article 1.1 of the American Convention –namely, race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition- must be closely scrutinized and analyzed, because those factors qualify as so-called "suspect categories."  The restriction must be shown to be necessitated by some overriding or urgent stated objective, adequate or proportional to the end sought, and the least restrictive of the protected right.  When the restriction cannot be credibly shown to satisfy these requirements, it will be invalid as it will be motivated solely by prejudice.

84.     In the report titled Considerations Regarding the Compatibility of Affirmative Action Measures Designed to Promote the Political Participation of Women with the Principles of Equality and Non-Discrimination,[118] the Commission observed that "[i]dentifying discriminatory treatment requires a showing of a difference in treatment between persons in a sufficiently analogous or comparable situation."[119]  However, it went on to point out that not every difference in treatment in similar circumstances is necessarily discriminatory. It notes that a “distinction which is based on ‘reasonable and objective criteria’ may serve a legitimate state interest in conformity with the terms of Article 24.  It may, in fact, be required to achieve justice or to protect persons requiring the application of special measures. (…)  A distinction based on reasonable and objective criteria (1) pursues a legitimate aim and (2) employs means which are proportional to the end sought.”[120]

85.     When a consideration like sex is used as the basis for a difference in treatment, the latter can be justified only if the motive adduced for that unequal treatment between men and women is compelling or of great import or weight.  The Commission contends that "the law is expected to be even-handed between women and men unless just, legitimate and reasonable compelling bases have been adduced to justify a difference in treatment."[121]  The Commission then proceeds to introduce the idea of the detailed examination required in the case of distinctions based, for example, on the sex of the person:  "Statutory distinctions based on status criteria, such as, for example, race or sex, necessarily give rise to heightened scrutiny" such that "very weighty reasons would have to be put forward to justify a distinction based solely on the ground of sex."[122]

86.     This very same articulation of the strict test of reasonability is developed in the case of María Eugenia Morales de Sierra, one that is very pertinent to this report.[123]  Here, the Commission invoked the principle of non-discrimination to censure distinctions drawn between men and women in marriage.  In this case, the IACHR held that under Article 24 of the American Convention, certain forms of differences in treatment, for example those based on sex, are highly suspect and the State must provide very weighty reasons to justify them.  Whenever the distinction is made for certain suspect factors or categories, the law or policy that makes the distinction will be closely scrutinized or strictly monitored.[124]

87.     The Commission reiterated this doctrine in the Report on Terrorism and Human Rights[125] where it wrote that "While the doctrine of the inter-American human rights system does not prohibit all distinctions in treatment in the enjoyment of protected rights and freedoms, any permissible distinctions must be based upon objective and reasonable justification, must further a legitimate objective, regard being had to the principles which normally prevail in democratic societies, and the means must be reasonable and proportionate to the end sought. (…) Distinctions based on grounds explicitly enumerated under pertinent articles of international human rights instruments are subject to a particularly strict level of scrutiny whereby states must provide an especially weighty interest and compelling justification for the distinction."[126]  Therefore, for the Commission a sex-based restriction must be based on very compelling reasons; the burden of proof rests with the State.  Hence, when a restriction is premised on a "suspect category," the Commission accepts the "reversal of the burden of proof" and the "presumption of invalidity."

88.     Reforming laws, practices and public policies that establish sex-based differences in treatment is a duty incumbent upon the various institutions of the State, the judicial branch, the executive branch, the parliament and the legislative bodies, all with a view to bringing the domestic legal system and the functioning of the State into compliance with the human rights treaties in force.  At the same time, it is up to the States to make adequate and effective judicial recourses available so that individual citizens, national institutions for the protection of human rights, ombudsman’s offices, general human rights prosecutors, nongovernmental organizations and other social actors can turn to the policy-making bodies and the courts to demand that the lawfulness of these norms, practices and polices be scrutinized.  The adoption of discriminatory laws and the failure to comply with the positive obligations that a law or regulation imposes are direct manifestations of discrimination.

89.     Discrimination can also manifest itself in indirect ways. Arbitrary or disproportionate distinctions can be made in the application of laws, measures, practices or policies that at first glance appear to be neutral but that in fact have an impact that is prejudicial to groups in vulnerable situations.[127]

90.     An examination of laws and policies to ensure that they comport with the principles of effective equality and non-discrimination should also look for their potential discriminatory impact, even when their formulation or wording appears neutral[128] or they apply to everyone, without distinction. This was the finding of the Inter-American Court in the Case of the Girls Yean and Bosico[129] regarding the Dominican Republic’s standards and procedures for belated registration of birth.  The practical consequence of the onerous requirements and bureaucratic red tape was to increase the number of undocumented children who had no way to prove their nationality.  For children of immigrant parents, the effect was to exacerbate their deprivation by denying them access to social benefits and rights.

91.     If the effect of a law or regulation is direct discrimination, all that need be done to prove the discrimination is to show that the legal distinction uses a prohibited factor or that the positive action mandated by law was not taken.  If the effect is one of indirect discrimination, the disproportionately prejudicial effect or result that the provision has on a group has to be shown.  In such cases, empirical data must be produced showing that the alleged "invisible" or "neutral" bias in the adoption of decisions has a disparate effect on some group or groups.

92.     Therefore, to examine norms and policies for their adherence to the principle of effective equality and non-discrimination, one has to look at their discriminatory impact –even those whose formulation is neutral or those that apply to everyone, without exception.  The emphasis must be on objective factors –including the discriminatory effect or result- in preference to the declared intention to discriminate.

93.     The jurisprudence of the American States has long taken this position.  In Andrews v. Law Society of British Columbia,[130] the Supreme Court of Canada ruled that the purpose of the Canadian Charter of Rights and Freedoms was to protect all disadvantaged groups in society against discrimination.  Discrimination is present when a law, both in terms of its end goal/intent (purpose) and effect (impact), imposes a disadvantage on the members of those groups that it does not impose on other members of society.  To approach the ideal of full equality before and under the law, the main consideration must be the impact of the law on the individual or the group concerned.  While not every difference in treatment between individuals under the law will necessarily result in some inequality, it is also true that identical treatment may frequently produce serious inequality.  This is why the Supreme Court has so resoundingly rejected "the same or identical treatment" as the standard for equality.  Canada’s Supreme Court held that it is not simply a distinction in the treatment of groups and individuals, but also the imposition of some disadvantage on certain groups.

94.     The Constitutional Court of Colombia used similar arguments in reasoning its judgments C-673, C-507 and C-534/05.[131]   In these rulings, it cited two main principles as the underpinnings of the juridical protection of individuals’ interests.  The first is the general principle of equality, which has three dimensions and obligations. The first of these dimensions is equal protection, whereby the law is to apply equally to all persons.  However this dimension of equality is no guarantee that the law itself will treat all persons as equals.  Colombia’s Constitutional Court therefore found that a second dimension of the general principle of equality was needed, which is equal treatment, guaranteeing to all persons that the applicable law will equally regulate the situation of persons that should be treated differently.  When the distinctions that the law establishes are not reasonable, this dimension of the equality obligation is being ignored.

95.     Colombia’s Supreme Court held further that a law that does not establish differential treatment and is applied to all persons equally can nonetheless afford different degrees of protection to different people, thus necessitating the principle of equal protection, which ensures that people will effectively enjoy the same rights, freedoms and opportunities.[132]  This dimension of the principle of equality is substantive and positive:  substantive because it examines the situation of the groups to be compared to determine whether the type and degree of protection they receive is unequal, when it should be equal; positive because should some objectively unwarranted inequality be detected, the State is obligated to take measures to guarantee equal protection.  The Constitutional Court writes that in order to determine whether this right to equality has been violated, the degree of effective protection given to the rights, freedoms and opportunities has to be determined; should inequalities be present, the measures necessary to correct them have to be established. 

96.     The second criterion of juridical protection established by Colombia’s Constitutional Court is to better protect the interests of certain persons; in other words, the Court held that the State has a special duty to grant preferential treatment/special protection to groups that are discriminated against or disadvantaged.  The Court’s reasoning was that equality is protected when the law and public policy take into account the particular circumstances and characteristics of those who are in a position of social, political, economic or legal disadvantage.[133] 

97.     Therefore, while in principle egalitarian treatment would seem to require that the same standards apply to all persons, in reality no standards of conduct and compliance are entirely neutral since their impact on a given group may vary according to that group’s circumstances and characteristics.  The law itself is crafted by members of a society who are themselves immersed and often protagonists in a discriminatory culture.[134]  Hence, the commitment to equality is more than just achieving equality in the law; it must also be a commitment to equality in all social institutions such as the family, the marketplace and political institutions.

98.     The IACHR has recognized that de jure equality alone will not be sufficient to achieve gender equality.  The practices that generate and perpetuate women’s position of inferiority in society have to be undone.  Nevertheless, the importance of formal equality should not be underestimated.  The law plays a vital role in effecting social change:   "although formal equality does not guarantee the elimination of instances of discrimination, recognizing it makes it possible to encourage transformations in society, thereby enhancing the authority of this right."[135]

99.     While the inter-American system espouses a formal notion of equality in the sense of requiring that any difference in treatment be based on reasonable and objective criteria, thus precluding any unreasonable, capricious or arbitrary differences in treatment, it is also moving toward a concept of material or structural equality that is premised upon an acknowledgement of the fact that for certain sectors of the population, special equalizing measures have to be adopted.  The circumstances of the disadvantaged group might necessitate a difference in treatment because equal treatment could have the effect of limiting or encumbering their access to some service or good or the exercise of a right.[136]

b.         Due diligence and positive antidiscrimination measures

100.          Occasionally, the special measures of protection and measures to promote equality –including affirmative action- are measures to provide the guarantees necessary to ensure that certain sectors that are victims of structural equality or long-standing exclusion have access to and are able exercise certain rights.  The international and regional human rights systems have embraced the idea of using special measures to protect against discrimination.

101.          The Commission observes that the State’s due diligence obligations under Article 7 of the Convention of Belém do Pará include, in particular, the duty to prevent or transform structural or widespread violence against women.  These should be counted among the special measures to promote equality and eradicate social and cultural patterns that foster discrimination against women in society.  Section III of this report examines various policies being implemented in a number of States in this hemisphere and the public policy guidelines that could be followed to achieve that objective.

102.          The United Nations Human Rights Committee has observed that the obligation to ensure to all persons the rights recognized in the Covenant, established in articles 2 and 3 thereof, requires that States parties "take all necessary steps to enable every person to enjoy those rights." [137]  These steps include (i) the removal of obstacles to the equal enjoyment of such rights, (ii) the education of the population and of State officials in human rights, and (iii) the adjustment of domestic legislation so as to give effect to the undertakings set forth in the Covenant.  The Committee also noted that "[t]he State party must not only adopt measures of protection, but also positive measures in all areas so as to achieve the effective and equal empowerment of women. "[138] 

103.          The United Nations Committee on Economic, Social and Cultural Rights has established that the State as an obligation vis-à-vis groups in vulnerable circumstances or those whose economic, social and cultural rights are susceptible to violation, which is to enact laws that protect them from that discrimination and to adopt special measures, among them active policies of protection.[139]

104.          Within the inter-American region, Article 2 of the American Convention on Human Rights provides that States must promote measures that make the enjoyment of human rights possible: "(…) the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms."

105.          In the Case of the Girls Yean and Bosico, the Inter-American Court held that to be in compliance with its obligation of equal and effective protection of the law and non-discrimination, the State’s first duty when crafting the mechanisms by which nationality is recognized is to refrain from enacting any regulations that are either discriminatory or that have a discriminatory impact on a given group.[140]  Second, a State must combat discriminatory practices at all levels, particularly in public institutions.  Lastly, a State must take the affirmative measures needed to ensure that all persons are truly equal before the law.

106.          The Court also underscored this obligation of the State in Advisory Opinion OC-18.[141]  There, the Court emphasized the special obligation to protect that a State must exercise against discriminatory acts and practices in which third parties engage with that State’s tolerance or acquiescence.[142]  The Court ruled along similar lines in the Case of the Girls Yean and Bosico,  where it held that Article 24 of the American Convention requires that States not only refrain from exercising discriminatory policies and practices, but that it also protect its people against any discriminatory practices and conduct, whether by public agents or non-State actors.[143]

107.          This type of protection considerably magnifies the State’s obligations to protect the principle of equality before and under law.  It requires a State to craft preventive policies, especially with regard to widespread discriminatory practices or structural discriminatory situations, even when those practices and situations are attributable to private persons.  The IACHR examined this very obligation in the Maria Da Penha case, referenced earlier in this report.[144]

108.          With specific reference to the gender issue, the IACHR, through its Rapporteurship on the Rights of Women, has maintained that States must employ special measures in their efforts to reduce gender inequality. Accordingly, and pursuant to articles 20 and 24 of the American Declaration and Article 23 of the American Convention, the Commission has urged the States to continue and expand measures to encourage participation by women in decision-making in the public sphere, including positive measures.[145] The IACHR has urged the States to ensure that women have appropriate representation at all levels of government –local, provincial, state and national; to develop strategies to get more women involved in political parties; and to take further steps to bring the different sectors of civil society, including those that represent women’s interests, fully into the process of developing and implementing policies and programs.[146]

109.          "Special measures" is the phrase that international human rights instruments use to refer to temporary measures whose purpose is to ensure that certain groups are able to advance.  The committees that oversee international treaties, and the States Parties as well, have used terms such as "affirmative action," "positive action," "positive measures," "reverse discrimination" and "positive antidiscrimination."[147] They have justified measures of this type as corrective, compensatory and promotional.[148]

110.          General Recommendation No. 25 of the Committee on the Elimination of Discrimination against Women discusses the scope and significance of the special measures referenced in paragraph 1, Article 4 of the CEDAW, and states that such measures:

[m]ust be determined in the context of the overall object and purpose of the Convention, which is to eliminate all forms of discrimination against women with a view to achieving women’s de jure and de facto equality with men in the enjoyment of their rights and fundamental freedoms.  States parties to the Convention are under a legal obligation to respect, protect, promote and fulfill this right to non-discrimination for women and to ensure the development and advancement of women in order to improve their position to one of de jure as well as de facto equality with men.[149]

111.          The question of how long the temporary special measures will remain in place is a function of how long the inequality between men and women persists.  Hence, measures of this type should remain in place until equality between the sexes is achieved.[150]

112.          The term "special" should be understood to mean that these measures are calculated to serve a specific purpose; it should not be construed as meaning that the groups that the measures are intended to protect are somehow weak or vulnerable.[151]  The means used to achieve that end can vary, depending on the context:

The term “measures” encompasses a wide variety of legislative, executive, administrative and other regulatory instruments, policies and practices, such as outreach or support programmes; allocation and/or reallocation of resources; preferential treatment; targeted recruitment, hiring and promotion; numerical goals connected with time frames, and quota systems.  The choice of a particular “measure” will depend on the context in which article 4, paragraph 1, is applied and on the specific goal it aims to achieve.[152]

113.          In the report titled Considerations regarding the Compatibility of Affirmative Action Measures Designed to Promote the Political Participation of Women with the Principles of Equality and Non-Discrimination, the IACHR refers to Article 4 as a standard of interpretation.[153]  This article provides important guidance in understanding the legal grounds for taking special affirmative action measures intended to further women’s political participation, and "recognizes that, even where women are accorded equality as a matter of law, this does not equate to a guarantee of equality of opportunity or treatment.  Special measures to remedy persistent conditions of discrimination in fact are permitted as long as those conditions persist, and until equality of opportunity is achieved.  It must be emphasized that, under those circumstances, and where implemented as required, Article 4 provides as a matter of law that such measures do not constitute discrimination."[154] Affirmative actions can be taken, therefore, only if the discriminatory patterns that those actions are intended to correct are present and will last only as long as true equality of opportunity is not achieved.

114.          Therefore, differential treatment of men and women, in law and by the authorities, is justified when such treatment is advantageous to women and provided the underlying hidden purpose is not to lock women into the traditional roles that they have historically been given.

115.          Special measures serve a number of basic objectives.[155]  On the one hand, they are essential in order to remedy the pernicious consequences of the prejudice that women have endured and still endure.[156]  On the other hand, special measures also serve to eliminate the group hierarchy that is so deeply rooted in social structures.[157]  Special measures can also be justified as compensation for the domination of women practiced in the past, in that such measures can afford them an added advantage in the distribution of resources.

116.          In Advisory Opinion OC-16, the Inter-American Court confirmed the countervailing nature of measures adopted to eliminate real inequality.  There the Court wrote the following:

To accomplish its objectives, the judicial process must recognize and correct any real disadvantages that those brought before the bar might have, thus observing the principle of equality before the law and the courts and the corollary principle prohibiting discrimination. The presence of real disadvantages necessitates countervailing measures that help to reduce or eliminate the obstacles and deficiencies that impair or diminish an effective defense of one’s interests.  Absent those countervailing measures, widely recognized in various stages of the proceeding, one could hardly say that those who have the disadvantages enjoy a true opportunity for justice and the benefit of the due process of law equal to those who do not have those disadvantages.[158]

117.          The IACHR, too, has made express reference to the compensatory purpose that special measures serve:

Where certain groups within a population have historically been subject to certain forms of public or private discrimination, the existence of legislative prescriptions may not be a sufficient mechanism for ensuring equality in society. The right to equal protection of and before the law may also require the adoption of positive measures to protect against discriminatory treatment within the public and private sectors.[159]

118.          Not all societies discriminate against the same groups.  Some societies discriminate against certain ethnic, religious or political groups that other societies assimilate and absorb. Then, too, over the course of history, new targets of discrimination have emerged that did not exist before (for example, carriers of HIV-AIDS).  Groups that are in a vulnerable situation will vary from one society to the next and from one point in history to another.  Therefore, every State has a duty to determine who those groups are and to devise inclusive policies suited to each group and capable of ensuring to them the free and full exercise of their rights.  This was the finding of, for example, the United Nations Committee on Economic, Social and Cultural Rights with regard to a number of rights, among them the right to housing[160] and to public health.[161] 

119.          Colombia’s Constitutional Court has written at length on the idea of substantive equality. It held that the purpose of a substantive concept of equality is not just equality in the eyes of the law, but equality in practice as well.  The political formula of the social and democratic rule of law manifests itself in the promotion of this equality and "(…) is fully manifested in the mandate to afford special protection and consideration to the comparatively more disadvantaged when administering and meting out limited resources. "[162]   The Constitutional Court went on to add that equal protection is achieved by what States do in action and in practice, and not by what they abstain from doing.[163]

120.          Colombia’s Constitutional Court has also written on the grounds for and scope of the positive actions referenced in the Colombian Constitution (Article 13, paragraph 2).  In so doing it has alluded to the substantive dimension of equality, which it defines as the "State’s commitment to remove the obstacles that de facto economic and social inequalities pose.  Substantive equality, therefore, has a corrective, compensatory, emancipatory, countervailing and defensive quality for groups in positions of inferiority, through the positive actions taken in the branches of government."[164]

121.          In Judgment C-507/04, Colombia’s Constitutional Court asserted that one of the essential purposes of the State is to ensure the effectiveness of the principles, rights and duties recognized in the Constitution (Article 2).  Thus, the fundamental right to equal protection implies that the "State is to adopt the necessary measures" to materially ensure effective enjoyment of those rights.  In other words, substantive and positive measures designed to ensure that every person receives the same protection from the "authorities," as the Colombian Constitution states (Article 13), making no distinction between public, civilian, military, judicial and any other kind of authorities, such as legislative.

122.          In Judgment C-410/94,[165] Colombia’s Constitutional Court asserted that the "elimination of sexual discrimination required under Article 13 of the Constitution is more than just a prohibition of such discrimination; instead, the constitutional intent is to undo the inferior status that Colombian women have historically had to endure.  Based on the principle of protection, that ruling authorizes positive measures aimed at correcting de facto inequalities, compensating for the relegation they have endured and promoting women’s true and effective economic and social equality."  The justices in this case went on to write that protective measures "make it necessary to determine those particularly vulnerable spheres in which such measures are needed; in addition to family and State, the workplace is one area in which sexual discrimination is most likely to raise its head."[166]

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