Inter-American Commission on Human Rights (IACHR) has, for the first time, referred a case involving an alleged extrajudicial killing of a transgender woman to the Inter-American Court of Human Rights (IACtHR). The IACHR’s referral, filed on April 30, 2019, indicates that trans activist Vicky Hernández was killed – likely by State agents – during a government-imposed curfew in 2009, amid a broader context of attacks against LGBT persons in Honduras, and that the State subsequently failed to adequately investigate her death. [IACHR Press Release] The IACHR describes the case as an opportunity for the Court to “develop jurisprudence on violence against LGBT people, particularly trans women” and to again consider the human rights implications of the 2009 coup d’état in Honduras. [IACHR Press Release] The IACHR referred the case to the Court after determining that Honduras failed to comply with the recommendations set out in its merits report, which was recently made available in English on the IACHR’s website along with the letter of submission to the Court.
Facts & Context of the Case
At the time of her murder, Vicky Hernández was a well-known activist for the rights of trans persons in her community who had previously experienced abuse and mistreatment at the hands of police. See IACHR, Merits Report No. 157/18, Case 13.051, Vicky Hernández and family (Honduras), 7 December 2018, para. 21. Her body was found on the morning of June 29, 2009 and the coroner’s report indicated that she had died during the 48-hour curfew – a time when the streets were under State agents’ control – imposed the day before by the country’s de facto president. See id. at paras. 22-24. The police and coroner reports indicate that she was registered as a male victim when her body was discovered, she sustained wounds that indicated she was murdered with a firearm, and a used condom was found near her body. See id. at para. 24. Initially, forensic authorities declined to conduct an autopsy on the basis of her alleged HIV positive status and law enforcement failed to officially register her death in the National Civil Records Office until 2013. See id. at paras. 24-25. Additionally, the IACHR found no indication that authorities investigated the possibility of sexual violence against Hernández. See id. at paras. 24, 64, 95. Authorities have apparently not continued the investigation and have also refused to allow Hernández’s family to obtain copies of the investigation file. See id. at paras. 29-43.
The IACHR emphasized the relevance of the situation in Honduras at the time of Hernández’s death, specifically: high rates of violence and discrimination against LGBT people and the recent coup d’état. See id. at paras. 12-29. The IACHR noted that law enforcement had been found responsible for a significant number of the killings and ill-treatment of LGBT persons, and that the vast majority of cases of anti-LGBT violence, including murders, went completely uninvestigated and unpunished. See id. at paras. 12-14. Additionally, in cases that were investigated, authorities ignored the victims’ gender identity and sexual orientation. See id. at para. 17. The IACHR concluded that trans women and trans women human rights defenders were at particular risk in Honduras. See id. at para. 18. It noted, “[s]ix of the seven women who founded Unidad Color Rosa, Colectivo TTT, the group to which Vicky belonged, have been murdered; and of the 27 trans women murdered in Honduras between 2009 and 2012, 15 were activists of that group.” See id. at para. 45. With respect to the coup d’état in June 2009, the IACHR considered relevant the increase in human rights violations and restrictions on freedoms in Honduras, along with a heavy military presence throughout the country. See id. at para. 19. Reports showed an increase in hate crimes against people with non-normative sexual orientation, gender identity or expression during this time. See id. at para. 20.
The Commission’s Findings
The IACHR found the State had violated articles 4(1) (right to life), 5(1) (right to humane treatment), 8(1) (right to a fair trial), 11 (right to privacy), 13 (freedom of thought and expression), 24 (right to equal protection and nondiscrimination), and 25(1) (right to judicial protection) of the American Convention on Human Rights, in conjunction with Article 1(1) (non-discrimination) plus Article 7 of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, also known as the “Convention of Belém do Pará.” See id. at para. 5.
The IACHR first analyzed whether the acts of violence against Hernández were “based on prejudice toward her gender identity and expression as a trans woman.” See id. at 63. The IACHR characterized her death as “a trans-femicide” after considering that the manner in which she was killed was consistent with many other instances of crimes against trans women in Honduras, the deliberate decision of officials not to investigate potential sexual violence committed against her, combined with the hostile societal environment of discrimination and violence against LGBT people in Honduras. See id. at para. 66.
The IACHR then analyzed whether the State could be held responsible for her death. See id. at para. 67. Considering the general context of violence toward LGBT persons and the frequent involvement of law enforcement in such abuses, combined with the fact that her murder occurred during a curfew when the streets were under military control, the IACHR determined that there was “strong circumstantial evidence of direct state involvement” in Hernández’s death. See id. at para. 69. Additionally, the State’s failure to “carry out a thorough, meaningful, and diligent investigation to prove or disprove the evidence of involvement of State agents” weighed heavily against the State’s arguments that it could not be held responsible for her death. See id. at paras. 70-72. The IACHR noted that because Honduras had failed to undertake reasonable investigatory efforts, the State could be held responsible for violating Hernández’s rights to life and humane treatment. See id. at paras. 73-75.
The IACHR concluded that the State failed to conduct a proper investigation in line with its international human rights obligations and that “that nine years after the events the authorities have not yet identified those responsible or made any significant progress in terms of determining the circumstances in which the murder of Vicky Hernández occurred.” See id. at paras. 97-98. As a result, the IACHR found Honduras in violation of the rights to a fair trial, equal protection and nondiscrimination, and judicial protection. See id. at para. 98. Additionally, the IACHR stated that the State action constituted and “act of violence based on prejudice for the victim’s gender identity and expression,” which also results in the violation of the “right to privacy, the right to freedom of expression, and the principle of equal protection and nondiscrimination violation” – violations attributable to the State. See id. at para. 75.
The circumstances surrounding her death and the subsequent failure of the State to pursue justice in her case also led the IACHR to conclude that the impact on Vicky Hernández’s family members amounted to a violation of their right to have their mental and moral integrity respected, under Article 5(1). See id. at para. 100.
Process Before the IACHR
One month after Hernández’s death, the IACHR requested information on the investigation from the Supreme Court of Justice of Honduras, pursuant to Article 41 of the American Convention, and received a reply that the case was “under investigation” and investigators believed it was “a crime of passion.” See id. at para. 29.
On December 23, 2012, Honduran feminist lesbian organization, Red Lésbica Cattrachas, and the Centro de Derechos Humanos de las Mujeres submitted a petition to the IACHR on behalf of Vicky Hernández and her family, and IACHR admitted the petition on December 6, 2016. See id. at paras. 1, 2. The Commission presented its merits report to the State on January 30, 2019, giving it two months to report back on its compliance with the recommendations it contained. See Letter from the IACHR Executive Secretary, Paulo Abrão, to IACtHR Secretary, Pablo Saavedra Alessandri, 30 April, 2019.
On April 30, 2019, the IACHR referred the case to the IACtHR because the State had not submitted its report nor requested an extension of the deadline. See id. The letter to the Court reiterated the IACHR’s recommendations that the State provide compensation to the victims, provide support for their mental and physical rehabilitative healthcare, continue the investigation into Hernández’s death, and establish mechanisms of non-repetition. See id.
Referral to the Inter-American Court
The IACHR issues a merits report after it evaluates the allegations made in a petition and determines whether there were any human rights violations. When the IACHR concludes that the facts of the case constitute human rights violations, the merits report includes recommendations to the State. The IACHR may refer cases to the Court when States parties do not comply with the recommendations in the IACHR’s merits report, provided that the State has accepted the Court’s jurisdiction. Otherwise, the IACHR publishes the merits report. See IACHR, Rules of Procedure of the Inter-American Court of Human Rights (2009), arts. 44, 45.
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