4
11.
Thus, in this case, the Court concluded that the absence of a general policy
that should have been initiated in 1998 is a failure of the State to comply with its
obligation to prevent (para. 282). This “general policy” can be interpreted using the
criteria established by the European Court in the case of Osman v. Turkey, to the
effect that a public security policy designed to prevent, prosecute and punish
offenses, such as the crimes against women that it was known were being committed
in Ciudad Juárez, should have been implemented at least since 1998, which is when
the National Human Rights Commission (a federal entity) warned of the pattern of
violence against women in that city.
12.
However, at the same time, the Court determined that “it has not been
established that [the State] knew of the real and imminent danger for the victims in
this case” (para. 282) prior to their kidnapping and disappearance. Nevertheless, the
Court adopted a different attitude towards what the Judgment calls the “second
stage”; namely, after the State had become aware of the “real and imminent
danger” to a “specific group of individuals,” when the three identified victims
disappeared; thus, revealing the specific and evident danger that they would be
abused and deprived of life, despite which the State “did not prove that it had
adopted reasonable measures, according to with the circumstances surrounding
these cases, to find the victims alive” (para. 284).
13.
When reiterating its jurisprudence concerning the “obligation to prevent,” the
Court has emphasized the fundamental characteristics and components of this
obligation to guarantee, as well as the characteristics and levels of the State’s
international responsibility. This results in an obligation to design and implement
what this judgment calls “a general policy” of public security with its respective
prevention and criminal prosecution mechanisms, taking into account the difficulties
of doing this in any context and, even more so, in contexts of extensive and
generalized criminality.
14.
However, at the same time, the Court establishes the specific components of
the obligation to prevent in determined cases in a way that avoids detracting from
the criteria for determining the State’s international responsibility, possibly by failing
to differentiate it from ordinary crime. This avoids weakening and blurring
fundamental concepts such as “violation of human rights” or “international
responsibility of the States,” or that such concepts are confused with facts that are,
evidently, very serious but juridically different and distinguishable, such as the
criminal activity of individuals. Thus, the components of the obligation to prevent
insisted upon in this Judgment, help to ensure that the criminal acts of an individual
will not be mistaken with the international obligations of the State in the future.
15.
The States are obliged to establish general policies for public order that
protect the population from criminal violence. This obligation has progressive and
decided priority given the growth in the crime rate in most countries of the region.
But, as stated clearly in this Judgment, this does not imply that the State has an
“unlimited responsibility for any act or deed of private individuals” (para. 280),
because the measures of prevention regarding which the State can be declared
internationally responsible have the characteristics and components that have been
developed in this Court’s jurisprudence and that are repeated in this Judgment.
Diego García-Sayán
Judge
Pablo Saavedra Alessandri
Secretary
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