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99.
The main objectives of the regional human rights system and the principle of efficacy
require that those guarantees be implemented in practice. Therefore, when the States fail to guarantee
the exercise of any of these rights within their jurisdiction, both by law and in practice, they have, under
Article 2 of the American Convention, an obligation to adopt domestic legislative or other measures to
give effect to those rights. Hence, the duty of the States to provide judicial remedies is not limited to their
recognition in the constitution or the law; instead, they must be suitable to rectify the human rights
violations denounced. The Inter-American Court has held that:
[t]he absence of an effective remedy to violations of the rights recognized by the Convention is
itself a violation of the Convention by the State Party in which the remedy is lacking. In that sense,
it should be emphasized that, for such a remedy to exist, it is not sufficient that it be provided for by
the constitution or the law or that it be formally recognized, but rather it must be truly effecting in
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establishing whether there has been a violation of human rights and in providing redress.
100.
Inter-American case law has underscored the importance of conducting an immediate,
exhaustive, serious and impartial investigation of human rights violations. The Court has written that the
investigation must be undertaken
in a serious manner and not as a mere formality preordained to be ineffective. An investigation
must have an objective and be assumed by the State as its own legal duty, not as a step taken by
private interests that depends upon the initiative of the victim or his family or upon their offer of
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proof, without an effective search for the truth by the government.
101.
The IACHR has written that the Convention of Belém do Pará establishes that the due
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diligence obligation has a special connotation in cases of violence against women.
As was shown in
the preceding section, the IACHR has established that one of the most important principles here is that
the obligation of States in cases of violence against women includes the duties to investigate, prosecute
and punish the responsible parties; but it also includes the “obligation to prevent these degrading
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practices.”
It has also observed that judicial ineffectiveness creates a climate of impunity that is
conducive to domestic violence, as “society sees no evidence of willingness by the State, as the
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representative of the society, to take effective action to sanction such acts.”
The Inter-American Court,
for its part, has pointed out that the obligation to investigate effectively has a wider scope when dealing
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with the case of a woman.
Moreover, for an investigation to be effective, the States must conduct it
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from a gender perspective.
…continuation
paragraph 90; I/A Court H.R., Case of Godínez Cruz. Preliminary Objections. Judgment of June 26, 1987. Series C No. 3.
paragraph 93.
111
I/A Court H.R., Case of the “Street Children” (Villagrán Morales et al.). Judgment of November 19, 1999. Series C No.
63, paragraph 235, citing I/A Court H.R., Case of Cesti Hurtado. Judgment of September 29, 1999. Series C No. 56, paragraph 121;
I/A Court H.R. Case of Castillo Petruzzi et al. Judgment of May 30, 1999. Series C No. 52, paragraph 185; I/A Court H.R., Judicial
Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights). Advisory Opinion OC-9/87 of
October 6, 1987. Series A No. 9, paragraph 24.
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I/A Court H.R., Case of Godínez Cruz. Judgment of January 20, 1989. Series C No. 5, paragraph 188; I/A Court H.R.,
Case of Velásquez Rodríguez. Judgment of July 29, 1988. Series C No. 4, paragraph 177; I/A Court H.R., Case of the “Street
Children” (Villagrán Morales et al.). Judgment of November 19, 1999. Series C No. 63, paragraph 226.
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IACHR, Access to Justice for Women Victims of Violence in the Americas, OEA/Ser. L/V/II. doc.68, January 20, 2007,
paragraph 32.
114
IACHR, Merits Report, No. 54/01, Maria Da Penha Fernandes (Brazil), April 16, 2001, paragraph 56.
115
IACHR, Merits Report, No. 54/01, Maria Da Penha Fernandes (Brazil), April 16, 2001, paragraph 56.
116
I/A Court H.R., Case of González et al. (“Cotton Field”) v. Mexico. Preliminary Objection, Merits, Reparations and
Costs. Judgment of November 16, 2009. Series C No. 205, paragraph 293.
117
I/A Court H.R., Case of González et al. (“Cotton Field”) v. Mexico. Preliminary Objection, Merits, Reparations and
Costs. Judgment of November 16, 2009. Series C No. 205, paragraph 455.