26.
With regard to the “second moment” (the time elapsed between the report and
discovery of the body), the Court sought to elucidate the existence of the State’s international
responsibility by, first, evaluating whether “the State [had been], or should have been, aware
of the situation of real and immediate danger of [the victim”; second, “whether, being aware,
it had a reasonable possibility of preventing or avoiding the perpetration of the crime” and,
third, “whether it exercised due diligence with measures or actions to avoid the violation of
the rights of this child.”51
27.
To this end, the Court divided its analysis into two moments, the first with regard to
the “[e]xistence of a situation of risk for [the victim],”52 and the second with regard to the
“[p]ossbility of diligent action by the State to prevent the risk and its implementation.���53
Regarding the first moment, the Court determined that, following the report made by the
victim’s mother, the State was aware of the dangerous situation of the victim given the
context in Guatemala54 and, regarding the second moment, that, despite being aware of the
missing person report, the State had not taken any substantive action to investigate what
had happened or to avoid possible violations of the victim’s rights.55
28.
Accordingly, the Court concluded that Guatemala had incurred State responsibility
because it had failed to comply with its obligation to ensure the rights to life and personal
integrity recognized in Articles 4(1) and 5(1) of the American Convention, in relation to Article
19 (Rights of the Child) and 1(1) of this instrument, as well as its obligations under Article
7(b) of the “Convention of Belém do Pará.”56
29.
As can be observed in the two cases examined, in
established State responsibility as a result of the analysis of
obligation of prevention, where it has examined the State’s
situation, as well as the actions and measures taken based
diligence in the specific case.
its case law, the Court has
the “second moment” of the
awareness of the dangerous
on its obligation to act with
30.
However, it may be noted that, when analyzing the “first moment” — which I am
intending to emphasize in this opinion – it has opted to rule that, despite the context of
violence against women, the lack of prevention did not per se result in the State’s international
responsibility, since the State was unaware of a real and immediate danger for the victims
before they went missing, as well as the impossibility for the State to respond unrestrictedly
for every wrongful act against the victims.57
31.
Regardless of the foregoing, the Court has also concluded in its analysis of the said
“first moment” — in the case of González et al. (“Cotton Field”) v. Mexico — that, in light of
I/A Court HR, Case of Veliz Franco et al. v. Guatemala. Preliminary objections, merits, reparations and costs.
Judgment of May 19, 2014. Series C No. 277, para. 142.
52
I/A Court HR, Case of Veliz Franco et al. v. Guatemala. Preliminary objections, merits, reparations and costs.
Judgment of May 19, 2014. Series C No. 277, para. 155.
53
I/A Court HR, Case of Veliz Franco et al. v. Guatemala. Preliminary objections, merits, reparations and costs.
Judgment of May 19, 2014. Series C No. 277, para. 144.
54
I/A Court HR, Case of Veliz Franco et al. v. Guatemala. Preliminary objections, merits, reparations and costs.
Judgment of May 19, 2014. Series C No. 277, para. 154.
55
I/A Court HR, Case of Veliz Franco et al. v. Guatemala. Preliminary objections, merits, reparations and costs.
Judgment of May 19, 2014. Series C No. 277, para. 155.
56
I/A Court HR, Case of Veliz Franco et al. v. Guatemala. Preliminary objections, merits, reparations and costs.
Judgment of May 19, 2014. Series C No. 277, para. 158.
57
I/A Court HR, Case of González et al. (“Cotton Field”) v. Mexico. Preliminary objection, merits, reparations
and costs. Judgment of November 16, 2009. Series C No. 205, para. 282, and Case of Veliz Franco et al. v.
Guatemala. Preliminary objections, merits, reparations and costs. Judgment of May 19, 2014. Series C No. 277, para.
139.
51
9