that the action of the authorities had not involved the adoption of the necessary measures
to prevent or avoid the danger reported by the victims. 80 Consequently, he Court considered
that Articles 2 of the American Convention and 7 of the “Convention of Belém do Pará” had
been violated owing to the lack of capacity, sensitivity, willingness and training to respond
to missing person reports in the Guatemalan context, as well as the absence of immediate
and effective actions.81 The Court also declared the violation of Article 7 of the “Convention
of Belém do Pará” as a result of the failure to ensure the free and full exercise of the rights
to life and to personal integrity.82
44.
The foregoing reveals, at first sight, that based on the absence of a ruling by the
Court on concluding its analysis of the general obligation of prevention – in other words,
during the “first moment” of this obligation (before the disappearance of Claudina
Velásquez) – the State’s responsibility is constituted by the Court’s analysis of the specific
obligation of prevention, establishing the international responsibility of Guatemala as a
result of the analysis of the “second moment” — before Claudina Velázquez’s body was
found — as a result of the failure of the authorities to take measures aimed at preventing
the danger reported by the victim’s parents.
45.
I consider that this has a negative impact on the analysis of the obligation of
prevention as a whole and, subsequently, on the determination of international
responsibility, because the failure of the authorities to adopt measures and take diligent
actions – during the “second moment” of the State’s obligation of prevention that, in this
specific case, had the purpose of preventing the danger and avoiding the injuries suffered
by Claudina Velásquez — was a result of the lack of clarity in the laws that should have
defined the actions to be taken following the report that the victim was missing. And this
resulted from the adoption of “insufficient measures to resolve the problem” of violence
against women in Guatemala,83 non-compliance that plainly formed part of the State’s
general obligation of prevention with regard to the “first moment” – that is, related to the
general obligation to prevent the disappearances and murder of women.
46.
In this regard, I consider that this constitution of responsibility is a result of a State
responsibility that appears during the “first moment” of the obligation of prevention
because, in the context of an escalation of homicidal violence against women in Guatemala
of which the State was aware,84 and despite all the measures taken by the State with regard
to the problem, at least since 2001,85 none of these measures was aimed at establishing an
effective mechanism or practice that would ensure an immediate search for missing women;
a situation that evidently had an impact on the “second moment,” when the victim’s parents
were confronted by the inexistence – that persists up until the present – of an instrument,
mechanism or practice requiring the immediate search for their daughter.
47.
This is logical when noting the measures of reparation ordered by the Court. Indeed,
among the “guarantee of non-repetition” and under the heading “Measures to prevent
that “there is no provision in domestic law” relating to this lapse and, third, the law on which the State argued that
the agents had based their actions (article 51 of Decree No. 40-90 of the Organic Law of the Public Prosecution
Service) did not indicate the actions that the authorities should have taken in that case and made no reference to
receiving the report, reflecting confusion “as to the rules that the police should follow.” Paras. 128 to 131 of the
judgment.
80
Para. 132 of the judgment.
81
Para. 133 of the judgment.
82
Para. 133 of the judgment.
83
Para. 120 of the judgment.
84
Para. 111 of the judgment.
85
Para. 112 of the judgment.
13
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