Vicky Hernandez ET Al v. Honduras

Vicky Hernandez ET Al v. Honduras

Author: João Victor Stuart
GHRD Coordinator: International Justice and Human Rights team 
LLB Federal University of Rio de Janeiro, Brazil. 


Background


The Vicky Hernandez et al v. Honduras case concerns the extrajudicial killing of the transgender activist Vicky Hernandez during the Coup D’État in Honduras that overthrew the former President, Mr Manuel Zelaya, to install the de facto government of Roberto Micheletti (Reportar sin Miedo, 2021). 


Vicky Hernandez was a sex worker and activist at the NGO “Colectivo Unidad Color Rosa” whose mission is to fight for the protection of the Human Rights of transgender people in Honduras (Inter-American Court of Human Rights, 2021). 
During the night of June 28 2009, Vicky and two friends were on the street when the government of Honduras declared a curfew because of the political coup that hit the country. Due to the curfew, the streets were under the control of the State's agents. Two witnesses stated that a group of police officers approached them and tried to arrest them. They ran, each in a different direction (Inter-American Court of Human Rights, 2021). 
A few hours later, the agents of the National Direction of Criminal Investigation communicated that Vicky had been shot at her head and her body had been left on the street (Rights, 2021). 


In the following months, the local authorities initiated criminal investigations regarding this case. However, the IACHR affirmed in its concluding observations that the authorities had stopped the investigations without presenting concrete evidence about the identity of Vicky’s murderer and prevented her family from obtaining copies of the investigation (International Justice Resource Center, 2019). 


Jurisdiction of the IACHR


After Vicky’s death, the NGO Cattrachas Lesbian Network lodged an application before the Inter-American Commission of Human Rights in 2012 (Honduras: Court Finds State Responsible for Trans Killing, 2021). 


After analysing the claims, in its final report, the Commission favoured the petitioner’s claims by strengthening the link between Vicky’s murder, her gender identity, the major  lack of security and dignity provided to LGBT people in Honduras and the lack of prompt and effective investigations of the case (Organisation of American States, 2019). Lastly, the Commission decided to submit the case before the Inter-American Court of Human Rights. 

The Inter-American Court of Human Rights is an international judicial body set up in 1979 in San José, Costa Rica. Its main function is to solve contentious cases, exercise an advisory function by interpreting human rights issues stemming from the American Convention, and analyse and issue requests for provisional measures (What Is the Inter-American Court of Human Rights and What Are Its Responsibilities? 2021). Currently, 23 American states have accepted the jurisdiction of the Court (Which States Are Part of the American Convention, 2021). 


 Any natural person or legal person recognized in at least one of the member states’ jurisdiction can forward a complaint before the Inter-American system, although it must be done firstly before the Inter-American Commission on Human Rights (Global Human Rights Defence, 2021). The Commission is the first organ responsible for assessing whether the application has fulfilled the requirements of article 46 of the American Convention or not. After an evaluation, the Commission releases a merit report where it decides whether the case goes to the Court or not (Merits Reports of the Inter-American Commission on Human Rights, 2021). 


Honduras has ratified the American Convention. Therefore, it is bound to the jurisdiction of the Court. It has also ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (“Convention of Belém do Pará”) whose terms were used by the petitioner to fundament the violations committed against Vicky Hernandez. 


The petitioner relied on article 7 (b) of the last Convention to claim that the murder of the victim violated her right to a fair trial and judicial protection since the investigation regarding this crime did not take into account a gender and gender identity perspective (Merit Report No. 157/18 CASE 13.051, 2021). The state of Honduras also ignored the victim's vulnerable condition due to her work as an Human Right activist (Merit Report No. 157/18 CASE 13.051, 2021). For more than one time, the UN special rapporteur on the situation of human rights defenders has defined Honduras as one of the deadliest countries in Latin America for human rights defenders (World Report 2020: Rights Trends in Honduras, 2020). This scenario originates from an ineffective official Mechanism for the Protection of Journalists, Human Rights Defenders and Operators of Justice that lacks an uniform group of criteria and requirement to afford protection to these people (World Report 2020: Rights Trends in Honduras, 2020). The petitioner also claimed that the police authorities did not consider the possibility of sexual assault against the victim, and did not act with diligence in collecting and analysing evidence (Merit Report No. 157/18 CASE 13.051, 2021). 


Lastly, Vicky was also deprived of her rights to equal protection, freedom of expression and humane treatment. Firstly, the fact that she was a transgender woman turned the investigation into a biased procedure, which deprived her of her right to receive equal attention and care from the authorities working on her case (Merit Report No. 157/18 CASE 13.051, 2021). 


Furthermore, whilst Vicky recognized herself as a woman, authorities registered her death as Johny’s because Honduran law prevents someone to be recognized according to the gender they choose for themselves (Merit Report No. 157/18 CASE 13.051, 2021). It is a manifest breach of her right to express her sexuality freely and of the duty of the state to not to interfere in her private life. In addition, the lack of a timely, prompt and effective investigation offended her family's right to humane treatment (Merit Report No. 157/18 CASE 13.051, 2021). 

The IACHR’s work regarding people’s gender rights 


In its advisory opinion concerning gender identity, and equality and non-discrimination of same-sex couples, the Inter-American Court, despite the lack of a formal definition of discrimination in the American Convention, has employed the definition of the United Nations Human Rights Committee to describe the scope of discrimination (Inter-American Court of Human Rights, 2017). It affirms that: 
"any distinction, exclusion, restriction or preference based on specific reasons, such as race, colour, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of the human rights and fundamental freedoms of all persons.” 
Based on this statement, the Court has concluded that Article 1 (1) of the American Convention binds states to abstain from biased or prejudicial acts that harm exercise of the rights and freedoms recognized in it¸ whatever the origin or form they take (Inter-American Court of Human Rights, 2017). Hence, when states deploy illegitimate, unnecessary and disproportionate differentiate treatments, it will result in their international responsibility (Inter-American Court of Human Rights, 2017).

Furthermore, as the Court interprets the expression “any other social condition” extensively, adopting the most favourable interpretation for the safeguard of the rights enshrined in the Convention, the list of discriminations of Article 1 (1) becomes unexhausted. Then, the Court may consider other grounds of discrimination, including the scopes of sexual orientation, gender identity and gender expression (Inter-American Court of Human Rights, 2017). 
Regarding the interpretation of Article 7 (1) of the American Convention that protects privacy, the Court has also stressed that the protection of private life encompasses the people’s capacity to freely self-determine their identity (Inter-American Court of Human Rights, 2017). In this sense, the Court has stated that adopting and expressing a gender integrates this self-determination process, and therefore, incorporates the meaning of privacy (Inter-American Court of Human Rights, 2017). Thereby, the judges reiterated that: 
“Gender identity has been defined as the internal and individual experience of gender as each person feels it, which may or may not correspond to the sex assigned at birth.”
This suggests that gender and sexual identities are not subject to a person’s masculine or feminine body. Accordingly, states, as the main guarantors of fundamental rights, must respect and ensure the pacific coexistence of individuals from all sorts of gender expressions and sexual orientations (Inter-American Court of Human Rights, 2017). Furthermore, the right to sexual and gender identity must coincide with the people’s identification recorded in official documents (Inter-American Court of Human Rights, 2017). Thus, the right to name, a basic instrument enshrined by article 18 of the American Convention, is how individuals can express their individuality, their gender and sexuality before the society (Inter-American Court of Human Rights, 2017). 
Therefore, the Court has stated that states are obliged to provide and protect the right to name as well as to provide the means to facilitate a person’s registration, meaning that public registration organs must reproduce the name chosen by individuals or by their parents (Inter-American Court of Human Rights, 2017). 

Source: American Heart Association: https://www.heart.org/en/news/2021/07/08/discrimination-against-transgender-gender-diverse-people-adds-to-heart-troubles 

The situation of transgender people in Latin America.  

The Latin America and Caribbean region is the deadliest region in the world when it comes to the persecution, harassment and assassination of transgender people (Prtorić, D’Orlando, et al., 2016). According to the NGO Transgender Europe (TGEU), among 2,115 deaths of transgender people from January 2008 until April 2016, nearly 78% of them occurred in Central and South America (Prtorić et al., 2016). In addition, from April 2016 until September 2020, the project added over 1,500 murders to this number (Prtorić et al., 2016). Brazil is the world most dangerous country for transgender people to live followed by Mexico and the United States. The country accumulates over 40% of the entire number of killings (Prtorić et al., 2016). 
Sexist and patriarchal societies explain violence against transgender people in the region and spread the prejudice to law-enforcement agencies, such as the police and the armed forces (Prtorić et al., 2016). To illustrate, the 2013 Anti-Violence project reported that transgender people are 3.7 times more likely to suffer aggressions from law-enforcement agents compared to ordinary individuals. It rises to 6 times when the victims are transgender people of colour (Burns, 2020). 
The structural discrimination against transgender people prevent them from building up a career at many places, forcing them to choose prostitution as the only alternative for their survival.  In another survey, the Association of Transvestites, Transsexuals and Transgender people of Argentina attested that 95% of the interviewees had resorted to sex work at least once in their lives. Nearly 70% of them needed to do so to secure their subsistence or use it to compensate for low incomes from other labour activities (Prtorić et al., 2016). 

Source:USAtoday-https://www.usatoday.com/restricted/?return=https%3A%2F%2Fwww.usatoday.com%2Fin-depth%2Fnews%2Fnation%2F2021%2F05%2F06%2Ftransgender-killings-puerto-ricos-transwomen-murder-rate-hits-record%2F4859574001%2F 

Judgment 


In the final judgment, the Inter-American court reiterated that the American Convention enshrines the rights to gender identity, gender expression and free sexual orientation as inherent parts of the right to privacy and freedom of thought. Vicky’s murder was a strategy for authorities to frighten and prevent Honduran transgender people to exercise their fundamental rights (Inter-American Court of Human Rights, 2021b). 
The Court stated that the attitude of Honduran authorities to hinder the investigations over Vicky’s murder because of her sexuality and gender shows the discrimination behind the decisions of the State of Honduras, which violates the American Convention in its articles 1 (prohibition to discrimination) and 7 (right to privacy) (Inter-American Court of Human Rights, 2021b). 
Regarding articles 4 (right to life) and 5 (right to humane treatment), the Court analysed more than one aspect to convict the State of Honduras. Vicky’s death occurred during a military presence on the streets in a context of violent persecution of transgender sex workers by police officers (Inter-American Court of Human Rights, 2021b). 
In addition, after her death and the political coup in Honduras, the country registered a significant rise in killings linked to gender identity and witness affirmed that a group of cops had tried to arrest Vicky the night before her death (Inter-American Court of Human Rights, 2021b). Lastly, as the State of Honduras confirmed during the trial proceedings, the record of impunity of crimes committed against transgender people in Honduras is alarming. Vicky’s case did not have a different outcome, once authorities abandoned the investigations without obtaining concrete evidence (Inter-American Court of Human Rights, 2021b). 
Therefore, based on this evidence, the Court concluded that Honduran police officers had arbitrarily killed Vicky, which contradicts article 4.1 that forbids the arbitrary deprivation of anyone’s life. Moreover, the judges understood that Vicky must have experienced a high level of psychological and physical pain before her death, which violated article 5.1 whose text protects the right to physical, mental, and moral integrity (Inter-American Court of Human Rights, 2021b). 
Next, the Court stressed that the State of Honduras also violated articles 8.1 (Right to a fair trial) and 25 (Right to judicial protection) for neglecting the link between the crime and Vicky’s gender identity, how it contributed to the occurrence of the crime, the potential involvement of public authorities and the evidence that Vicky had endured sexual violence before dying (Inter-American Court of Human Rights, 2021b).
The Court also stressed that the fact that Honduras did not register Vicky’s death as of a woman’s death, as well as her assassination and the biased investigations behind the case, violated her right to legal personality (article 13), private life (article 11.2) freedom of expression (article 13) and her right to name in accordance with the gender she had chosen in life (Inter-American Court of Human Rights, 2021b). 
The judges affirmed that prejudice against the Victim’s gender motivated both her assassination and the reluctance of the police to acknowledge the nexus between her gender and her killing (Inter-American Court of Human Rights, 2021b). The Court added that the impossibility of recognizing Vicky’s gender on her identity and death registration also posed additional obstacles to the investigations (Inter-American Court of Human Rights, 2021b). 
The two latest considerations of the Court regarded the application of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, known as the Convention of Belém do Pará, and the right to personal integrity of Vicky’s family. 
The aforementioned Convention also includes transgender women in its scope of protection, therefore, the violations committed by Honduras against the victim also harm article 7 of this document. This article urges states and their authorities to refrain from engaging in any act or practice of violence against women, and to prevent, investigate and impose penalties for violence against women. As Honduras perpetrated acts of violence against Vicky’s right to life and integrity, and its authorities failed to investigate and punish the agents, it became obvious that the State disrespected the Convention (Inter-American Court of Human Rights, 2021b). 
Lastly, the judges condemned Honduras for disrespecting article 5.1 of the American Convention. This article secures the right to personal integrity, which the Court understood that was violated by the pain and grievance that her family endured not only because of the crimes but also due to the impunity behind it (Inter-American Court of Human Rights, 2021b). 

Conclusion


This case's decision is a remarkable step towards the enforcement of transgender people’s rights in Latin America. Firstly, it strengthened the bond between gender identity, privacy and freedom of expression, highlighting that, when someone chooses to adopt a certain type of gender, he or she is legally exercising a right to self-determination anchored on the principles of privacy and freedom of expression. For this reason, this ruling reinforces the obligation of states to not interfere with people’s inherent rights or deploy violence against people's private choice on gender and sexuality, and not to employ their law-enforcement mechanisms to foster discrimination and impunity concerning the crimes committed against transgender people. .


References


Burns, K. (2020, June 23). Why police violence so often targets trans people. Vox. https://www.vox.com/identities/2020/6/23/21295432/police-black-trans-people-violence Global Human Rights Defence. (2021, June 23). GHRD Interview with Brazilian expert about the Inter-American system of human rights. GHRTV. https://www.ghrtv.org/ghrd-interview-with-brazilian-expert-about-the-inter-american-system-of-human-rights 

Honduras: Court Finds State Responsible for Trans Killing. (2021, July 2). Human Rights Watch. https://www.hrw.org/news/2021/07/02/honduras-court-finds-state-responsible-trans-killing Inter-American Court of Human Rights. (2017, November). ADVISORY OPINION OC-24/17. https://www.corteidh.or.cr/docs/opiniones/seriea_24_eng.pdfInter-American Court of Human Rights. (2021a). CASO VICKY HERNÁNDEZ Y OTRAS VS. HONDURAS. https://www.corteidh.or.cr/docs/casos/articulos/resumen_422_esp.pdf 
Inter-American Court of Human Rights. (2021b, March). CASO VICKY HERNÁNDEZ Y OTRAS VS. HONDURAS - RESUMEN OFICIAL EMITIDO POR LA CORTE INTERAMERICANA. https://www.corteidh.or.cr/docs/casos/articulos/resumen_422_esp.pdf 
International Justice Resource Center, I. (2019, June 6). Inter-American Court to Determine State Responsibility for Trans Woman’s Murder. International Justice Resource Center. https://ijrcenter.org/2019/06/06/inter-american-court-to-determine-state-responsibility-for-trans-womans-murder/
Merit Report No. 157/18 CASE 13.051. (2021). Organisation of American States. https://www.oas.org/en/iachr/decisions/court/2019/13051FondoEn.pdf 
Prtorić, J., D’Orlando, G., Fallon, A., Makangara, M., Curbelo, L., & Marot, C. (2016, November 16). Latin America: the most deadly region for transgender communities. Equal Times. https://www.equaltimes.org/latin-america-the-most-deadly?lang=en#.YSUDH45KjIU 
Prtorić, J., D’Orlando, G., Fallon, A., Makangara, M., Curbelo, L., & Marot, C. (2016, November 16). Latin America: the most deadly region for transgender communities. Equal Times. https://www.equaltimes.org/latin-america-the-most-deadly?lang=en#.YSUDH45KjIU 
Rights, H. K. R. F. (2021). Timeline in the case of Vicky Hernández et al vs. Honduras. Robert F. Kennedy Human Rights. https://rfkhumanrights.org/vicky-hernandez-case-timeline 
What is the Inter-American Court of Human Rights and What are its responsibilities? (2021). Inter-American Court of Human Rights. https://www.corteidh.or.cr/que_es_la_corte.cfm?lang=en 
Which States are part of the American Convention. (2021). Inter-American Court of Human Rights. https://www.corteidh.or.cr/que_es_la_corte.cfm?lang=en 
World Report 2020: Rights Trends in Honduras. (2020, January 14). Human Rights Watch. https://www.hrw.org/world-report/2020/country-chapters/honduras#bebe6c