90.
The Commission finds that the State completely omitted from the investigation any analysis
of multiple elements that suggested that the deed might be consistent with a crime prompted by prejudice and
possibly involved state agents; namely that (i) she died from a gunshot wound to the head; (ii) her body was
left in a public place; (iii) an apparently used condom was found at the scene; (iv) the deed took place at night
during a curfew in which the streets were under military control; and (v) it occurred in a context of
discrimination based on prejudice that included, inter alia, police violence against LGBT persons, especially
trans women sex workers. The State took no steps either to confirm or exclude the involvement of the security
forces or the possibility that the crime might have been motivated by prejudice. The State also failed to pursue
any line of inquiry relating to Vicky Hernández's activist work as a member of the Color Rosa TTT trans
collective, in spite of subsequent information regarding the continued murder of members of that same group.
91.
In second place, as regards the procedures conducted as part of the sole line of inquiry adopted
by the State, the Commission considers that the investigative process at the domestic level was lacking and the
activities to gather evidence minimal, unjustifiably sporadic and protracted, and uncoordinated. The
Commission notes that the only procedures carried out during the year in which the incident occurred were
the preliminary inspection and the record of removal of the corpse. The facts in the case show that the
authorities did not resume investigating until 2011, two years after the events.
92.
The Commission finds that there is a factual discrepancy between the State and the petitioners
regarding the autopsy report on Vicky Hernández and whether or not it was included in the record of the
investigation at the domestic level. In that connection, it should be highlighted that the record provided to the
Commission, which was updated on November 20, 2013, contained no such report. Likewise, the Commission
notes that the facts in the case indicate that on March 12, 2015, the petitioners submitted a second formal
request to the Office of the Special Prosecutor for Crimes against Life to have the autopsy report included in the
record, saying that as of that date, the autopsy report had not yet been added to the record. The Commission
finds that the State has not furnished sufficient proof to show that the report has actually been included in the
record, nor offered a satisfactory explanation as to why that had not yet occurred in 2013.
93.
On a separate matter, regarding the mention in the record of the murder's classification as a
possible crime of passion, the Commission recalls the Court’s positions in the cases ofVelásquez Paiz and
Gutiérrez Hernández:
“[...] the notion of ‘crime of passion’ is part of a stereotype that justifies violence against
women. The inclusion of the qualifier ‘passion’ tends to justify the assailant’s conduct. For
example, ‘he killed her out of jealousy’ or ‘in a fit of rage’ are expressions that encourage
condemnation of women who suffer violence. The victim is blamed and the violence of the
attacker supported.” (Free translation) 166 In that connection, the Court rejects any State
practice by which violence against women is justified and the blame put on them, given that
appraisals of that nature betray a discretionary and discriminatory attitude based on the
conduct of the victim simply for being a woman. Consequently, it considers that such gender
stereotypes are incompatible with international human rights law and steps should be taken
to eradicate them wherever they present themselves. (Free translation)167
94.
That same reasoning applies in this case, in which the classification of the deed as a crime of
passion implied a justification of the violence against a trans woman.
95.
Equally, the Commission finds that the State omitted to carry out key procedures for the
investigation. The record of removal of the corpse noted that an apparently used condom and a bullet were
found at the scene of the crime. As previously mentioned in this report, the Commission finds nothing in the
record to suggest that the appropriate studies were carried out to determine if Vicky Hernández was a victim
of sexual violence, nor was a scientific analysis done of the residue found in the condom, or the necessary
I/A Court H.R., Case of Velásquez Paiz et al. v. Guatemala, par. 187, citing the expert opinion rendered before a notary public
(affidavit) by Alberto Bovino in that case.
167 I/A Court H.R., Case of Gutiérrez Hernández et al. v. Guatemala, Preliminary Objections, Merits, Reparations, and Costs,
Judgment of August 24, 2017, Series C No. 339, par. 171.
166