Petition 161-02, Report No. 21/07, Paulina del Carmen Ramírez Jacinto (Mexico)
On March 9, 2007, by Report No. 21/07, the Commission approved a friendly settlement agreement in the case of Paulina del Carmen Ramírez Jacinto. In summary, the petitioners alleged that on July 31, 1999, when Paulina del Carmen Ramírez Jacinto was 14 years old, she was the victim of a rape perpetrated in her home. The act was reported immediately to the Agency of the Public Ministry Specialized in Sexual Crimes and Family Violence. The petitioners alleged that he Public Ministry did not inform Paulina del Carmen Ramírez Jacinto or her mother of the existence of emergency oral contraception, and the rape led to a pregnancy. The petitioners state that under Article 136 of the Criminal Code of Baja California, Paulina del Carmen Ramírez Jacinto had the right to a legal abortion, upon authorization from the Public Ministry, since the rape is one of the exceptions in which abortion is not criminalized. Nonetheless, despite the insistence in performing that procedure to which she had a right, representatives of the Public Ministry and of the hospitals to which Paulina Ramírez Jacinto was referred imposed various administrative and psychological barriers, providing false information on the procedure and its consequences, to the point of influencing her decision. Finally, the interruption of the pregnancy was not performed.
According to the friendly settlement agreement, the State undertook as follows:
ONE: The Government of Baja California shall hand over, on March 4, 2006, as consequential damages covering the legal expenses incurred in processing the case and the medical expenses incurred by Paulina del Carmen Ramírez Jacinto and I. R. J. (sic) as a result of the incident, the amount of $60,000 (sixty thousand pesos).
TWO: Paulina del Carmen Ramírez Jacinto acknowledges that the Government of Baja California gave to her, in June and August 2001, as assistance for maintenance expenses and assistance with spending on necessities and school supplies, the amount of $114,000 (one hundred and fourteen thousand pesos).
THREE: Paulina del Carmen Ramírez Jacinto acknowledges that the Government of Baja California gave to her, in June 2001, as support for housing expenses, the amount of $220,000 (two hundred and twenty thousand pesos).
FOUR: Both Paulina del Carmen Ramírez Jacinto and I. R. J. (sic) shall be provided with health services by the Social Services and Security Institute of the Government and Municipal Workers of Baja California State (ISSSTECALI), in which they are both enrolled as of March 13, 2006. For this purpose, the head of ISSSTECALI’s Department of Enrollments and Entitlements shall be the agent of record on behalf of the Government of Baja California.
Said health services shall be given to Paulina del Carmen Ramírez Jacinto and to I. R. J. (sic) on a continuous and permanent basis until I. R. J. (sic) reaches adult age or, should I. R. J. (sic) decide to pursue higher or university studies, until he concludes his higher education.
FIVE: Psychological care for I. R. J. (sic) and Paulina Ramírez Jacinto shall be provided by the specialists of the Mental Health Center of the Baja California State Health Secretariat. For this purpose, they shall be assigned an account executive and they may avail themselves of those services whenever needed at any time following the signature of this agreement.
The account executive to be appointed on March 13, 2006, shall be the head of the Psychology Department of the Mental Health Center, who shall receive them at the premises of that Center (Calle 11 & Río Papaloapan S/N, Fraccionamiento Viña Verde, in Mexicali, Baja California).
SIX: The Government of Baja California shall provide I. R. J., at the start of each academic year, with school supplies, enrollment fees, and text books up to and including the high school level. For this purpose, it will grant, in coupons, at the start of each school year, the amount of $5,290 (five thousand two hundred and ninety pesos), through the offices of the State Secretariat for Education and Social Welfare.
The school supplies to be given to I. R. J. (sic) are those set out in the “List of school supplies” (Annex 1) and any others added to that list over time by the State Secretariat for Education and Social Welfare.
In order for these items to be provided on a timely basis, Paulina del Carmen Ramírez Jacinto shall report to the offices of the relevant school level section in the two weeks prior to the start of the corresponding school year, so she can be given the aforesaid amount.
The Government of Baja California agrees to provide I. R. J. (sic), should he decide to continue with higher or university studies following the conclusion of his high school or vocational education, with the corresponding studies at a public institution. The support shall consist of enrollment fees, transportation, and academic supplies for as long as he continues to obtain passing grades in his studies. This support shall increase over time in accordance with the needs of I. R. J. (sic) and taking into consideration the inflation index published by the Bank of Mexico.
SEVEN: On January 15, 2006, the Government of Baja California handed over, as a one-off presentation, a computer and printer.
EIGHT: On March 4 the Government of Baja California will hand over the sum of $20,000.00 (twenty thousand pesos) through the State Social Development Secretariat’s Productive Projects program, to help Paulina del Carmen Ramírez Jacinto in setting up a microenterprise. In implementing this project, she will receive direct assistance from the aforesaid Productive Projects office.
These advisory services shall be provided by the productive projects director of the Social Development Secretariat, at its premises located on the second floor of the executive branch building (Calzada Independencia No. 994, Civic and Commercial Center, Mexicali, Baja California). This assistance shall be provided in three-hour sessions over four weeks (for a total of four sessions) and shall commence once this agreement has been signed.
NINE: The Government of Baja California shall deliver to Paulina Ramírez on March 31, 2006, the sum of $265,000 (two hundred and sixty-five thousand pesos) as a one-off payment for moral damages.
TEN: The Government of Baja California offered a Public Acknowledgement of Responsibility in accordance with the terms set out in the documents attached to this agreement, published in the local newspapers La Voz de la Frontera and La Crónica on December 30, 2005, (Annex 2) as well as in the Official Gazette of the State of Baja California on February 10, 2006 (Annex 3).
ELEVEN: The Government of Baja California, through the Directorate of Legislative Studies and Projects, shall submit to and promote before the State Congress the legislative proposals submitted by the petitioners and agreed on with the state government.
For this purpose a working committee was set up, comprising both parties; this committee is currently working on a final proposal, which is to be presented no later than the last day of April, 2006. Once the legislative proposal agreed on by the parties has been made available, it will be submitted to the Baja California State Congress on May 16, 2006 (Annex 4; draft under analysis by the parties).
As regards the proposed amendment of Article 79 of the Regulations of the Organic Law of the Office of the Attorney General for Justice and the proposed circular from the Health Secretariat, the Government of the State of Baja California agrees, within the confines of its competence and powers, to begin the corresponding legal formalities as requested by the petitioners during the first half of April 2006 (Annexes 5 and 6).
Additionally, the local government agrees to schedule the training courses to be conducted by the petitioners, as agreed on at the technical analysis meeting held in Mexicali, Baja California, on January 12, 2006.
TWELVE: The Mexican State, through the Health Secretariat, agrees to:
1. Conduct a national survey, involving state representation, to assess the enforcement of Official Mexican Standard NOM 190-SSA1-1999 regarding medical assistance in cases of domestic violence, and to measure progress with the implementation of the National Program for the Prevention and Attention of Domestic, Sexual, and Violence against Women.
2. Update the aforesaid Official Standard, to expand its goals and scope and to expressly include sexual violence occurring outside the family context. To this end, the petitioners shall be given the preliminary draft of the amendments to the Standard, so they can present whatever comments they deem relevant to the National Consultative Committee for Standardization and Disease Control and Prevention.
3. Draw up and deliver a circular from the federal Health Secretariat to the state health services and other sector agencies, in order to strengthen their commitment toward ending violations of the right of women to the legal termination of a pregnancy, to be sent out no later than the second half of March 2006.
4. Through the National Center for Gender Equality and Reproductive Health, conduct a review of books, indexed scientific articles, postgraduate theses, and documented governmental and civil society reports dealing with abortion in Mexico, in order to prepare an analysis of the information that exists and detect shortcomings in that information, to be delivered to the petitioners in November 2006.
On March 11, 2008, a working meeting was held with the parties. At that meeting the parties agreed that the following points needed follow-up in relation to the friendly settlement agreement:
- School Support: The sum already set in the agreement shall be paid, for which the government of the State shall develop a mechanism to ensure it is handed over on a timely basis, which will be within 30 days of the beginning of the school year.
- Legislative Reform: The State will seek to foster lobbying of the new local congress to encourage the amendment of Article 136 of the local Criminal Code, Article 20 (f, XI) of the Code of Criminal Procedure, and add 22 bis and 22 bis 1 of the health law.
- Training: The State will seek to take initiatives with the appropriate offices to hold training courses, after receiving a proposal from the petitioners.
- Circular: The State will seek, with the appropriate offices, to see to it that the local circular is published in the official gazette of the State. Both parties undertake to continue a dialogue on this point of the agreement.
- Productive Project: The State shall inform the petitioners on implementation of this point, and a copy of the permit will be given to them. The State will take up anew the commitment to give the technical training course for the productive project.
By means of a communication dated November 12, 2009, the Commission requested the parties to provide updated information.
By means of a communication dated October 9, 2009, the State reiterated full compliance with the friendly settlement agreement with regard to school support.
Regarding promotion of the legislative reform agreed upon in the eleventh item of the friendly settlement agreement, the presentation of institutional letters constitutes a conclusive action in this aspect. Indeed, the State pointed out that these official letters are the institutional communication mechanism that authorities have at their disposal to provide evidence of their orders, instructions, recommendations, information, petitions, or positions on issues of interest. By virtue of the above, the State considered that it had completely complied with the present item of the agreement.
Regarding training, the State indicated that the petitioners had not contacted the state authorities of Baja California for the purpose of agreeing upon a timetable for providing courses. As for the State, it asserted that it does not require publication of the circular issued by the Health Secretary on October 4, 2006 in the states official gazette. It pointed out that the above stems from the fact that the contents of the above-mentioned circular envisages provisions previously found in legal frameworks already in force and which were duly published for their entry into force. The State added that this circular does not provide additional rights or guarantees for women with respect to nonpunishable abortion cases and that it does not generate rights and obligations for the medical staff that might be different from the legal provisions. The State considers that this poit of the agreement has totally been complied with.
With respect to the production project, the State indicated that the Government of the State of Baja California has at all times shown willingness to support Ms. Paulina del Carmen Ramírez Jacinto in formalizing her business, as well as the land where she is currently operating, and pledged to the interested party to exonerate her from paying for State procedures and to even cover the corresponding payment to the municipal authority for the issuance of the land-use permit. It also indicated that Ms. Paulina del Carmen Ramírez Jacinto had not appeared at the training course that she was invited to take, claiming that, as she did not have the land-use permit, she could not trust that her business would operated.
It indicated that it has complied with the agreement, in addition to the amendment of NOM-190-SSA1-1999, "Medical assistance in cases of domestic violence,” which was amended as NOM-046-SSA2-2005 "Prevention and attention of domestic and sexual violence and violence against women." It specified that this norm was published in the Official Register of the Federation on April 16, 2009.
The State finalized its presentation, repeating its willingness and commitment to comply with the agreements reached with Ms. Paulina del Carmen Ramírez Jacinto.
As for the petitioners, by means of a communication dated December 14, 2009, they reported on school support, indicating that although to date school support had been provided, in previous years it was not provided on time. Therefore, they indicated that it is a matter of concern that the mechanism to ensure its future compliance has not as yet been developed. They indicated that this mechanism is also aimed at preventing Paulina from depending on the good will of those who are responsible for providing this school support and at confirming full compliance with an international commitment.
Regarding legislative reform, the petitioners reported that the commitment to submit the respective bills of reform was fulfilled on September 5, 2006, although the obligation to promote it remained unmet. The petitioners claimed that the State has partially and insufficiently complied with this item, as the lobbying that was promised was missing, and that after the constitutional reform it is urgent that legislative reforms be adopted as well, to thus ensure that, at least in cases such as rape, women can gain access to abortions practiced in safe conditions and in the framework of the law.
With respect to training, the petitioners pointed out that they hope to deal with this matter in the future using a practical approach with the IACHR in the context of a working meeting. Moreover, the petitioners reported that, to comply with the terms of the friendly settlement agreement and to effectively guarantee that the events suffered by Paulina Ramírez would not be repeated, it is indispensable for the State to take action so that the circular of Baja California issued by the Health Secretariat of this state shall be published quickly in the official gazette of the state of Baja California.
Regarding the obligation of the State to update NOM-190-SSA1-1999 "Medical assistance in case of domestic violence," although it is certain that it was amended and published in April 2009 as NOM-046-SSA2-2005 "Prevention and attention of domestic and sexual violence and violence against Women,” there were certain matters of concern. Indeed, it was pointed out that, although the norm was updated, the approved version includes substantial changes that, in the case of rape, would make an abortion, “instead of an obligation and a right, a mere possibility which, according to the language of the regulation, could be construed as an action to be decided by medical staff.”
With respect to the production project, the petitioners reported on the procedures with the Government of the state of Baja California, indicating that there was no willingness or support from those who had the obligation to facilitate these procedures. They specified that, although it involves the jurisdiction of two levels of government that are different and independent, this does not prevent the Government from interceding in the competent bodies to sensitize them about Paulina’s needs.
The Commission concludes that the State has complied partially with the aforementioned recommendations. As a result, the Commission shall continue to monitor the items that are pending.
Case 11.381, Report No. 100/01, Milton García Fajardo (Nicaragua)
In Report No. 100/01 of October 11 2001, the Commission concluded that the Nicaraguan State: (a) violated, to the detriment of Milton García Fajardo, Cristóbal Ruiz Lazo, Ramón Roa Parajón, Leonel Arguello Luna, César Chavarría Vargas, Francisco Obregón García, Aníbal Reyes Pérez, Mario Sánchez Paz, Frank Cortés, Arnoldo José Cardoza, Leonardo Solis, René Varela, and Orlando Vilchez Florez, the right to humane treatment, contained in Article 5 of the American Convention on Human Rights; and (b) violated, to the detriment of Milton García Fajardo and the 141 workers who are included in this complaint, the rights to judicial guarantees and judicial protection, and economic, social, and cultural rights, protected by Articles 8, 25, and 26 of that international instrument, in relation to the general obligation to respect and ensure the rights, provided for in Article 1(1) of the same Convention.
According to the complaint, on May 26, 1993, the customs workers went on strike after having sought unsuccessfully to negotiate, through the Ministry of Labor, a set of petitions that demanded, among other things, the nominal reclassification of the particular and common positions at the General Bureau of Customs, labor stability, and 20 percent indexing of salaries in keeping with the devaluation. The Ministry of Labor resolved, on May 27, 1993, to declare the strike illegal, arguing that Article 227 of the Labor Code did not permit the exercise of that right for public service workers or workers whose activity is in the collective interest. The petitioners also alleged that the Police made disproportionate use of force during the strike held by the workers on June 9 and 10, 1993.
The Commission made the following recommendations to the State:
1. To conduct a complete, impartial, and effective investigation to establish the criminal responsibility of the persons who inflicted the injuries caused to the detriment of Milton García Fajardo, Cristóbal Ruiz Lazo, Ramón Roa Parajón, Leonel Arguello Luna, César Chavarría Vargas, Francisco Obregón García, Aníbal Reyes Pérez, Mario Sánchez Paz, Frank Cortés, Arnoldo José Cardoza, Leonardo Solis, René Varela and Orlando Vilchez Florez, and to punish those responsible in accordance with Nicaraguan law.
2. To adopt the measures necessary to enable the 142 customs workers who lodged this petition to receive adequate and timely compensation for the violations of their human rights established herein.
On November 12, 2009, the Commission requested the State and the petitioners to provide information about the status of compliance with the recommendations.
On December 15, 2009, the State reported that it was impossible to comply with the first recommendation because, by virtue of domestic legislation, the statute of limitations for the crime had come into force, which prevented the corresponding investigations from being conducted. Concretely, he indicated that the domestic legal provisions regarding the statute of limitations in criminal proceedings are a previously established legal norm that is currently in force, setting limits for the investigation, prosecution and criminal proceedings, and as long as these provisions are not amended or reformed, they constitute an objective legal obstacle to compliance with this recommendation. In this regard, it repeated that compliance with this recommendation was not possible and requested the IACHR to declare that compliance had been completed.
In addition, the State pointed out, regarding compliance with the agreements reached with most of the former Customs employees, that these agreements are in the process of being fulfilled to the extent that it is feasible in the country and indicated that, to date, it had proceeded to reinstate 43 former employees and that there is full willingness to continue this process. Regarding the payment of reparations, it indicated that the State acted to the extent of its financial capacity to provide a positive response to the petitioners. Finally, regarding the proposal submitted by the petitioner Alfredo Barberena regarding the six victims who did not sign the reparations agreement with the State, it indicated that it does not have the capacity to take up new and different agreements, and because of this the agreement signed on June 7, 2007 is available for those who wish to adhere to it, without privileges or preferential treatment, in line with Nicaragua’s economic reality.
As for the petitioners, in 2009, they reported that the State had not investigated or punished those responsible for injuries to the victims. As for reparations, they reported that the State had not fulfilled the commitments made with the victims who signed the agreement, because they have only paid part of the amount that was pledged and have not recognized social security quota payments, nor have they reinstated most of the employees into the public sector. They also reiterated the need for the State to sign a reparation agreement with the victims who had not participated in the agreement of 2007, on the basis of international human rights standards referring to reparation.
The IACHR appreciates the agreement signed between the State and most of the victims in 2007. Nevertheless, it once again urges the State to present the parameters used to calculate the compensation figures stemming from this agreement. Regarding the investigation to determine the criminal liability of all the perpetrators of the injuries that were caused to the detriment of the victims, the IACHR reminded the State of its obligation to investigate and punish those responsible for the human rights violations.
The Commission concludes that the State has complied partially with the aforementioned recommendations. As a result, the Commission shall continue to monitor the items that are pending.