63
State discriminates in this regard or in the guarantee of a conventional right, then the
fact should be analyzed under Article 1(1) of the substantive right at issue. Conversely,
if the alleged discrimination refers to unequal protection by the domestic law, then it
should be analyzed under Article 24 thereof. As such, the alleged discrimination in the
access to justice derived from Articles 8 and 25, should be analyzed under the general
obligation to respect and guarantee the conventional rights without discrimination,
recognized under Article 1(1) of the Convention.
184. As it has been established before by the Court, and pursuant to the principles of
non discrimination enshrined in Article 1(1) of the American Convention, in order to
guarantee access to justice to members of indigenous communities, “it is indispensable
that States offer effective protection that considers the particularities, social and
economic characteristics, as well as the situation of special vulnerability, customary law,
values, customs, and traditions.”254 Moreover, the Court has noted that “States should
abstain from, directly or indirectly, creating situations of de jure or de facto
discrimination.”255
185. The Court considers that it has been proven that Mrs. Rosendo Cantú was not
provided with a translator provided by the State when she required medical care, nor
when she filed her initial complaint; neither did she receive, in her language, information
regarding the subsequent steps taken regarding her complaint. In order to inform the
authorities of that which affected her and to obtain information, she had to turn to her
husband who spoke Spanish. On the other hand, the State on subsequent occasions
when it called upon the victim, offered an interpreter and also informed that it was
implementing a program that consisted of indigenous interpreters in Guerrero. The Court
positively assesses both these steps taken by Mexico. Nevertheless, the inability to file
a complaint and receive information in her language at the initial stages, implied, in the
present case, treatment that did not consider Mrs. Rosendo Cantú’s situation of
vulnerability based on her language and ethnicity, thus implying an unjustified
infringement to her right to seek justice. Based on the foregoing, the Court considers
that the State did not comply with the obligation to guarantee, without discrimination,
the right to access to justice, pursuant to Articles 8(1) and 25 of the American
Convention, in relation to Article 1(1) of the same instrument.
*
*
*
186. In addition, the Commission and the representatives alleged the violation of the
Inter-American Convention to Prevent and Punish Torture. Among other reasons, it was
stated that the authorities did not investigate the rape for the crime of torture, and that
the Penal Code of the state of Guerrero does not codify said crime. The Court
understands that this allegation refers, fundamentally, to the legal definition under
which the rape suffered by Mrs. Rosendo Cantú was investigated. Article 1 of said treaty
establishes the general obligation to prevent and punish torture. Article 6, in its regard,
establishes the obligation to make torture a criminal offense under domestic law,
establishing severe penalties for such acts. Finally, Article 8 of the Convention
establishes, in general terms, the obligation to open, ex officio and immediately, an
(“First Court of Administrative Disputes”) v. Venezuela. Preliminary Exceptions, Merits, Reparations, and Costs.
Judgment of August 5, 2008. Series C No. 182, para. 209; Case of Ríos et al., v. Venezuela. Preliminary
Exceptions, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 194, para. 348, and
Case of Perozo et al., supra note 236, para. 379.
254
Cf. Case of Yakye Axa Indgenous Community, supra note 102, para. 63; Case of Comunidad Indígena
Sawhoyamaxa v. Paraguay. Merits, Reparations and Costs. Judgment March 29, 2006. Series C No. 146, para.
83; Case of the Saramaka People. v. Suriname. Preliminary Objections, Merits, Reparations, and Costs.
Judgment of November 28, 2007. Series C No. 172, para. 178, and Case of Tiu Tojín v. Guatemala. Merits,
Reparations, and Costs. Judgment of November 26, 2008. Series C No. 190, para. 96.
255
Juridical Condition and Rights of the Undocumented Migrants. Advisory Opinion OC-18/03, supra note
210, para. 103.
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