Azul Rojas Marín v. Peru
Azul is a transgender Peruvian, who, whilst living as a gay man, was arbitrarily arrested by police officers in 2008, then raped, beaten and verbally abused due to her sexual orientation.
Azul was arbitrarily arrested by police officers in 2008. Whilst in detention at the police station in Casa Grande, Peru, she was stripped and raped with a truncheon by three police officers.
During her ordeal, which lasted for approximately six hours, Azul was beaten and verbally abused for her sexual orientation and robbed of her belongings.
Following her release, Azul filed a criminal complaint with the Peruvian authorities for rape, abuse of authority and torture against the officials responsible.
Even though the prosecutor authorities recognised that sufficient evidence existed to open an investigation for rape and abuse of authority, they decided not to open an investigation for torture.
The prosecution argued that there was no indication that the officers had raped Azul; they reasoned that – as there was no intention to obtain information or to obtain a confession to a crime, or to punish her for her sexual orientation – the case lacked the necessary elements under Peruvian law for the crime to constitute torture.
The prosecution later decided to close the investigation into rape and abuse of authority leading to the tribunal responsible for the case to close it.
ACTION FOR JUSTICE
REDRESS, together with the Centro de Promoción y Defensa de los Derechos Sexuales y Reproductivos (PROMSEX) and the National Coordinator for Human Rights (CNDDHH), brought Azul’s case to the attention of the Inter-American Commission on Human Rights (IACHR) after exhausting all possibility of obtaining redress domestically, on 14 April 2009.
On 25 November 2014, the IACHR found the case admissible.
On 1 December 2016 a landmark hearing took place during the 159th period of sessions of the IACHR. It was the first case of torture against an LGBTI person heard by the Inter-American Commission.
Oral arguments were presented before the IACHR on a number of critical aspects of the case. These included Azul’s illegal arrest and detention, her rape as a form of torture, the discrimination she suffered at the hands of the Peruvian authorities throughout the domestic legal proceedings and the exhaustion of domestic remedies.
In 2018, the Commission decided that:
- the State breached its duty of care and protection of a victim who reports sexual violence, with the existing prejudice regarding LGBTI persons being an aggravating factor;
- there were sufficient reasons and evidence to establish that, because of the nature and manner in which the violence was exercised, there was a particular cruelty connected with the identification or perception of Azul, at that time, as a gay man;
- what happened to Azul should be understood as discriminatory violence and that the treatment constituted torture.
The Commission recommended that Peru adopt a series of measures to redress both the material and moral damages suffered by Azul and her mother. These measures should include the payment of compensation, a public apology, a prompt and effective investigation of the facts, provision of the necessary medical and psychological treatment, and the adoption of non-repetition mechanisms including running training programs for all officials who have contact with victims of violence due to prejudice or who are in charge of investigating, including sexual (and other) violence against the LGBTI population.
On 22 August 2018, the IACHR submitted the case to the Inter-American Court of Human Rights, as a result of the failure by the Peruvian State to present any proposals for comprehensive reparation.
On 12 March 2020, the Inter-American Court of Human Rights issued its judgment in the case in which it found Peru responsible for the torture and sexual violence committed by Peruvian police officers against Azul in 2008. Considering a case of discriminatory torture for the first time, the Court made the following key findings:
- The arbitrary detention of LGBTI persons can be inferred when there are signs of discrimination and no other apparent reason for the detention;
- The purposive element of the definition of torture incorporates discrimination based on sexual orientation and gender identity;
- States have a duty to investigate violence motivated by discrimination against members of the LGBTI community, including a duty to investigate the discrimination element itself;
- The Court tackled structural discrimination through its comprehensive reparation measures.
The Court declared the State of Peru internationally responsible for the violation of the rights to personal liberty, personal integrity, privacy, not to be subjected to torture, judicial guarantees and the judicial protection of Rojas Marín. Peru was also responsible for the violation of the right to personal integrity of Rojas Marín’s mother, Juana Rosa Tanta Marín, who died in 2017, and who suffered greatly due to what happened to Azul.
A more detailed analysis of the outcomes is set out in a Briefing Paper.
On 3 November 2022, the Peruvian Minister of Justice and Human Rights acknowledged the State’s responsibility for what happened and formally apologised to Azul at a ceremony in Lima. Direct discussions are ongoing with the State of Peru regarding the implementation of the remainder of the judgment.
- Case Name: Azul (previously “Luis Alberto”) Rojas Marín v. Peru
- Court/Body: Inter-American Court of Human Rights
- Date Filed: 14 April 2009
- Current Status: Decision reached (12 March 2020)
- Legal representation: REDRESS, PROMSEX and CNDDHH.
The American Convention on Human Rights, also known as the Pact of San José, is an international human rights treaty (a binding agreement under international law) which has been ratified by 11 countries in the Western Hemisphere.
Jurisprudence is a system or body of law.
LGBTI: Lesbian, Gay, Bisexual, Transgender and/or Intersex.
Credit Photo: Promsex.