Rodríguez v. Costa Rica (1988), the Court links, from the beginning of its work, the
duty to prevent violations of human rights with maintaining criminal law adapted to
the Convention, including the classification of some crimes:
The State has a legal duty to take reasonable steps to prevent human rights
violations and to use the means at its disposal to carry out a serious investigation of
violations committed within its jurisdiction, to identify those responsible, to impose the
appropriate punishment and to ensure the victim adequate compensation. This duty
to prevent includes all those means of a legal, political, administrative and
cultural nature that promote the protection of human rights and ensure that
any violations are considered and treated as illegal acts, which, as such, may
lead to the punishment of those responsible and the obligation to indemnify the
victims for damages. 54
22. Like any obligation derived from the States’ duties to prevent, investigate and punish,
the obligation to establish and maintain an adequate legal framework for protection
- which includes the criminal classification of certain conduct - is complemented and
enhanced in cases of especially vulnerable groups, culminating in an enhanced duty
of due diligence. This relationship, highlighted by the Court in the judgment (para.
93-100), was also detailed in the context of violence against a woman in the case of
VRP and VPC v. Nicaragua (2018):
(…)The Court also recalls that, in cases of violence against women, the general
obligations established in Articles 8 and 25 of the American Convention are
complemented and reinforced for those States that are parties, by the obligations
derived from the specific inter-American treaty, the Convention of Belém do Pará.
Article 7(b) of this Convention specifically obliges the States Parties to apply
due diligence to prevent, investigate, punish and eradicate violence against
women. (…)Thus, the Court has established that States must adopt comprehensive
measures to comply with due diligence. In particular, they must have an
appropriate legal protection framework, which is enforced effectively, and
prevention policies and practices that allow it to act effectively in response to
reports. 55
23. Therefore, the relationship between the duty to investigate and punish and the
obligation to adopt substantive criminal legislation that is compatible with
international human rights standards is unequivocal. Thus, in cases in which the
failure by a State to comply with its obligations to guarantee is due, at least in part,
to its failure to adapt its criminal legislation to international human rights standards,
the Court has the prerogative to demand reforms in legislation as part of reparatory
measures. Such measures may consist of the modification or suppression of
regulations considered inadequate to promote the objectives of the Convention or
the creation and entry into force of regulations intended to prevent violations of the
Convention, as explained by the Court in Casa Nina v. Peru (2020). 56
24. The development of the Court's case law regarding reforms in the States’ criminal
legislation as reparatory measures is based on the case of Palomino v. Peru (2005),
in which the representatives alleged a violation of Article 2 of the Convention due to
the alleged incompatibility of Article 320 of the Penal Code then in force in Peru
(which classified the crime of "forced disappearance") with international standards
54
5.
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 174-
Cf. Case of V.R.P., V.P.C. et al. v. Nicaragua. Preliminary Objections, Merits, Reparations and Costs.
Judgment of March 8, 2018. Series C No. 350, para. 152-3.
56
Cf. Case of Casa Nina v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of
November 24, 2020. Series C No. 419, para. 100.
55
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