“first moment” of analysis, includes the existence of a legal protection framework that is
enforced effectively, prevention policies, and prevention practices and strategies; while the
specific obligation of prevention or during its “second moment” of analysis, consists in the
adoption of preventive measures in specific cases to avoid the perpetration of human rights
violations when the State is aware that a person is in danger.
53.
Based on the above, with regard to the “general’ and “specific” particularities of the
obligation of prevention, or its “two moments” of analysis, it can be seen that, when analyzing
the “first moment,” although the Court has established that, in a context of violence against
women “international obligations impose on the State an enhanced responsibility with regard
to the protection of women […] which includes the obligation of prevention,” it has also
indicated that this does not impose on the State “unlimited responsibility for every wrongful
act committed against them.”95
54.
Even though I share this opinion, I also consider that, in reality, compliance with its
obligation “to have an adequate legal protection framework that is enforced effectively and
prevention policies and practices that permit efficient actions in response to reports, does not
represent imposing an unlimited responsibility on the State; nor does the fact that the
prevention strategy must be comprehensive and must prevent “the risk factors and, at the
same time, reinforce the institutions so that they can provide an effective response to cases
of violence against women” as the Court has established in its case law,96 aspects that form
part of the general obligation of prevention or the “first moment” of the analysis. Thus, this
“first moment” of the obligation of prevention has a determinant impact on the “second
moment” in which the State prevention apparatus is applied to the cases of missing persons
and gender-based violence that confront the State.
55.
In the instant case, it should be noted that, faced with a persistent “context” of an
escalation of violence against women and even though the Guatemalan State has taken some
actions to address the problem,97 the insufficiency and ineffectiveness of such measures has
meant that the country still does not have a mechanism, instrument or, in particular, a
practice to search immediately for missing women, in accordance with the standard
established by the Inter-American Court in the two previous cases on this matter,98 that could
prevent the risk faced by Guatemalan women and girls given the escalation in the murder of
women and the brutal circumstances in which it is perpetrated.
56.
It is a factor of special concern that, as a result of the failure to adopt effective and
sufficient measures to prevent violence against Guatemalan women, they continue to face a
constant situation of danger, where the guarantee of their rights is nullified, as well as the
rights of their next of kin, as in the instant case.
and Case of Veliz Franco et al. v. Guatemala. Preliminary objections, merits, reparations and costs. Judgment of May
19, 2014. Series C No. 277, para. 136.
95
I/A Court HR, Case of González et al. (“Cotton Field”) v. Mexico. Preliminary objection, merits, reparations
and costs. Judgment of November 16, 2009. Series C No. 205, para. 282, and Case of Veliz Franco et al. v.
Guatemala. Preliminary objections, merits, reparations and costs. Judgment of May 19, 2014. Series C No. 277, para.
139.
96
I/A Court HR, Case of González et al. (“Cotton Field”) v. Mexico. Preliminary objection, merits, reparations
and costs. Judgment of November 16, 2009. Series C No. 205, para. 258, and Case of Veliz Franco et al. v.
Guatemala. Preliminary objections, merits, reparations and costs. Judgment of May 19, 2014. Series C No. 277, para.
136.
97
As described in paras. 112 to 120 of the judgment.
98
I/A Court HR, Case of González et al. (“Cotton Field”) v. Mexico. Preliminary objection, merits, reparations
and costs. Judgment of November 16, 2009. Series C No. 205, and Case of Veliz Franco et al. v. Guatemala.
Preliminary objections, merits, reparations and costs. Judgment of May 19, 2014.
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