35.              As previously observed, the insecurity generated by crime and violence in the Americas is a very serious problem in which the observance and enjoyment of human rights are at stake.  Citizen security policies must be evaluated from a perspective of respect and guarantee of human rights.  On the one hand, negative obligations involving abstention and respect; on the other hand, positive obligations linked to the adoption of prevention measures.  The effective enforcement of rights involves positive and negative obligations at four levels:  the obligation to respect, the obligation to protect, the obligation to ensure and the obligation to promote the right in question.  The obligation to respect is defined as the State’s duty not to interfere with, hinder or bar access to, the enjoyment of the resources that are the object of the right.  The obligation to protect is the duty to prevent third parties from interfering with, hindering or barring access to the resources that are the object of that right.  The obligation to ensure means to guarantee that the titulaire of the right is able to gain access to the enjoyment of the right, when he or she is unable to do it for him or herself.  The obligation to promote is the duty to create conditions so that the titulaire of a right can have access to the enjoyment of the right.[32]

36.              One of the main dimensions of state obligations is linked to the judicial clarification of criminal conduct with the view to eliminating impunity and preventing the recurrence of violence.  Both the Inter-American Commission and Court have condemned the impunity of events violating fundamental rights.  Impunity facilitates the continuing repetition of human rights violations and the total defenselessness of victims and their families.  Undoubtedly the adequate and effective administration of justice on the part of the judicial branch and to an appropriate extent, of disciplinary entities, has a fundamental role not only in terms of reparations but also in terms of the lessening of the risk and the scope of violence.

A.        The States’ obligations from the standpoint of citizen security

37.              The American Convention protects the right to life (Article 4), physical integrity (Article 5), and liberty (Article 7) among others relating to citizen security, which will be analyzed in detail in forthcoming chapters of the present report.  Article 1 of the American Convention provides that

The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.

The Commission and the Court have repeatedly examined the scope of this provision to determine what is meant by positive obligations in the realm of human rights.  The Court, specifically, has established precedent to the effect that

[P]rotection of the law consists, fundamentally, of the remedies the law provides for the protection of the rights guaranteed by the Convention.  The obligation to respect and guarantee such rights, which Article 1(1) imposes on the States Parties, implies, as the Court has already stated, the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights.[33]

The scope of the juridical concept of positive obligations within the Inter-American system is elaborated upon in Article 2 of the American Convention, which provides as follows:

Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.

The Court has reiterated that

(…) the general duty under Article 2 of the American Convention implies the adoption of measures of two kinds:  on the one hand, elimination of any norms and practices that in any way violate the guarantees provided under the Convention; on the other hand, the promulgation of norms and the development of practices conducive to effective observance of those guarantees.  Furthermore, adoption of these measures becomes necessary when there is evidence of practices that are violations of the American Convention in any way.[34]

The international obligations undertaken by the member states, in accordance with the general principles on this subject, must be performed in good faith, in keeping with Articles 26, 27 and 31 of the Vienna Convention on the Law of Treaties.[35]

38.              Before dealing with the issues directly related to public policy on citizen security and in order to understand the possible scope of the international responsibility, it is necessary to review the criteria for attribution of state responsibility established in the American Convention, as well as its interpretation by the Commission and the Court in reports and judgments in relevant individual cases.  Broadly speaking, persons under state jurisdiction may see their fundamental rights compromised either from the behavior of State agents or from conduct perpetrated by individuals which, if not clarified generates state responsibility for non-fulfillment of the obligation to provide judicial protection.  In the case of persons in especially vulnerable situations, State responsibility also arises because of the lack of measures to prevent harm.  The particular case of obligations reinforced under the Convention of Belém do Pará will also be addressed.

1.         State responsibility for the acts of its agents and third parties

39.              Article 1(1) is crucial to establish whether a violation of the human rights embodied in the American Convention can be attributed to a State Party.  This Article does in fact entail a commitment by the States Party to the fundamental duties of respecting and ensuring rights, so any abridgment of the human rights recognized by the Convention that may be attributed, according to the rules of international law, to actions or omissions by any public authority constitutes an act attributable to the State, entailing its international responsibility under the terms set forth in the Convention and international law.  It is a principle under international law that the State is responsible for the acts and omissions of its agents carried out in their official capacity even if they act outside the limits of their sphere of competence.[36]  The international responsibility of the State is based on acts or omissions of any of its powers or organs, irrespective of their rank, which violate the American Convention, and is generated immediately with the international illegal act attributed to the State.  In these conditions, in order to establish whether a violation of the human rights established in the Convention has been committed, it is not necessary to determine, as it is in domestic criminal law, the guilt of the perpetrators or their intention; nor is it necessary to identify individually the agents to whom the acts that violate the human rights embodied in the Convention are attributed.  It is sufficient that a State obligation exists and that the State failed to comply with it.

40.              A State’s international responsibility may arise from the attribution of human rights violations committed by third parties or individuals, within the framework of the State’s obligations to guarantee respect for those rights between individuals.  The Court has recognized that

Said international responsibility may also be generated by acts of private individuals not attributable in principle to the State.  The States Party to the Convention have erga omnes obligations to respect protective provisions and to ensure the effectiveness of the rights set forth therein under any circumstances and regarding all persons.  The effect of these obligations of the State goes beyond the relationship between its agents and the persons under its jurisdiction, as it is also reflected in the positive obligation of the State to take such steps as may be necessary to ensure effective protection of human rights in relations amongst individuals.  The State may be found responsible for acts by private individuals in cases in which, through actions or omissions by its agents when they are in the position of guarantors, the State does not fulfill these erga omnes obligations embodied in Articles 1(1) and 2 of the Convention.[37]

2.         The obligation to adopt measures to prevent the violation of rights linked to citizen security

41.              Prevention involves all legal, political, administrative and cultural measures for the promotion of the protection of human rights that ensure that their violation be considered and treated as a punishable offence for the perpetrators.  It also involves the duty to provide reparations to the victims.[38]

42.              At the same time, States are not responsible for all the human rights violations committed between individuals within its jurisdiction.  Indeed, the nature erga omnes of the treaty-based guarantee obligations of the States does not imply their unlimited responsibility for all acts or deeds of individuals.  Their obligation to adopt prevention and protection measures for individuals in their relationships with each other is conditioned by the awareness of a situation of real and imminent danger for a specific individual or group of individuals and to the reasonable possibilities of preventing or avoiding that danger.  In other words, even though an act, omission or deed of an individual has the legal consequence of violating the specific rights of another individual, this is not automatically attributable to the State, because the specific circumstances of the case and the execution of these guarantee obligations must beconsidered.[39]

43.              The rights to life and to humane treatment are central to the Convention.  According to Article 27(2) of the said treaty, these rights are part of a non-derogable nucleus, because they are established as rights that cannot be suspended in case of war, public danger or other threats to the independence or security of the States Parties.  It is not sufficient to abstain from violating these rights.  States must adopt positive and specific measures in response to the specific needs of those who require protection because of their personal profile or their current situation.[40]  States have the obligation to guarantee the conditions to ensure that violations of these inalienable rights do not occur.  In compliance with the obligations imposed by Article 4 of the American Convention, in relation to Article 1(1) thereof, this not only assumes that no one shall be deprived of his life arbitrarily[41], but also, in light of the State’s obligation to guarantee the full and free exercise of human rights, it requires States to adopt all the appropriate measures to protect and preserve the right to life, pursuant to the obligation to ensure the enjoyment of human rights for all persons under its jurisdiction.[42]

44.              There is under international law a primary duty of the State to ensure the right to life through domestic criminal law with effective provisions contemplating the commission of offenses against persons supported by enforcement machinery for prevention, suppression and punishment for non-compliance with such provisions.  In some cases this obligation extends to the positive duty of the authorities to adopt preventive operative measures to protect an individual or group individuals, whose lives are at risk of criminal offenses by other individuals.  For a positive obligation to arise, it must be established that the authorities knew, or ought to have known, at the time of the existence of a real and immediate danger to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that danger.[43]  In situations of serious and systematic violations of human rights, the State’s obligation to adopt positive measures of prevention and protection under Article 1(1) of the American Convention are enhanced.

3.         The duty to investigate

45.              The obligation of Sates to investigate cases of violations of these rights arises from this general obligation to guarantee the rights established in Article 1(1) of the Convention, together with the substantive right that must be protected or ensured[44] and the due process and judicial protection guarantees set forth in Articles 8 and 25.  In light of this duty, the authorities must investigate conduct affecting the enjoyment of the rights protected in the American Convention and subject to public prosecution, as soon as they become aware of them.  This investigation must be carried out, without delay, by all available legal means with the aim of determining the truth and the investigation, prosecution and punishment of the perpetrators.  During the investigation procedure and the judicial proceedings, the victims of the human rights violations, or their next of kin, should have extensive opportunities to participate and be heard, both in the clarification of the facts and the punishment of those responsible, and in seeking fair compensation.[45] However, the investigation should be assumed by the State as an inherent juridical obligation and not merely as a reaction to private interests, which depend on the procedural initiative of the victims or their next of kin and on the contribution of evidence by private individuals, while the public authority is not making an effective effort to discover the truth.

46.              The duty of the State to investigate conduct affecting the enjoyment of the right protected in the Convention applies irrespective of the agent to which the violation may eventually be attributed.  In those cases where conduct is attributed to individuals, the lack of serious investigation could compromise the international responsibility of the State.[46]  In cases where the conduct may involve the participation of its agents, States have a special duty to clarify the facts and prosecute those responsible.[47]  Lastly, in cases involving the commission of serious violations of human rights such as torture, extrajudicial executions, and forced disappearances the Court has established that amnesties, statutes of limitation and provisions for the exclusion of responsibility, are inadmissible and cannot prevent the investigation and punishment of those responsible.[48]  Crimes against humanity give rise to the violation of a series of non-derogable rights that are recognized by the American Convention, whose violation cannot remain unpunished.  Likewise, it has determined that the investigation must be conducted resorting to all legal means available and must be focused on the determination of the truth and the investigation, prosecution, arrest, trial, and conviction of those persons responsible for the facts, both as perpetrators and instigators, especially when State agents are or may be involved in such events.[49]  Amnesty laws leave victims defenseless and perpetuate impunity for crimes against humanity.  Therefore, they are overtly incompatible with the wording and the spirit of the American Convention, and undoubtedly affect rights embodied in the Convention.[50]

4.         Reinforced obligations in the area of violence against women pursuant to the Convention of Belém do Pará

47.              In the case of crimes involving violence against women, in addition to the generic obligations contained in the American Convention, the States have an obligation reinforced under the Convention of Belém do Pará.  This Convention defines violence against women as “any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere”[51] and Article 7(b) obliges the States parties to apply due diligence to prevent, punish and eradicate violence.  Given that not all breaches of human rights committed against women necessarily implicate a breach of the provisions of the Convention of Belém do Pará, it must be determined in a particular case whether the acts of violence have been influenced by a context of discrimination against women.[52]  In cases where it has been determined that acts of violence against a woman fall within the obligations undertaken by the States party to the Convention of Belém do Pará, it is necessary to examine whether the authorities have fulfilled their duty to guarantee the rights affected (life, personal integrity, liberty, as appropriate), in accordance with Article 1(1) of the American Convention and Article 7 of the Convention of Belém do Pará, which forms the international corpus juris in the area of the prevention and punishment of violence against women.

48.              The States’ duty of effective investigation has additional significance when a woman sees her right to life, physical integrity or personal liberty affected, in the general context of violence against women.  It is imperative to reinforce society’s condemnation and to maintain women’s confidence in the authorities’ ability to protect them from the threat of violence.[53]  In its report on “Access to justice for women victims of violence” the Commission pointed out that:

[t]he influence exerted by discriminatory socio-cultural patterns may cause a victim’s credibility to be questioned in cases involving violence, or lead to a tacit assumption that she is somehow to blame for what happened, whether because of her manner of dress, her occupation, her sexual conduct, relationship or kinship to the assailant and so on.  The result is that prosecutors, police and judges fail to take action on complaints of violence.  These biased discriminatory patterns can also exert a negative influence on the investigation of such cases and the subsequent weighing of the evidence, where stereotypes about how women should conduct themselves in interpersonal relations can become a factor.[54]

In those cases where there is a breach of the obligation to investigate criminal conduct involving violence against women, the Inter-American Court has thus pointed out that the impunity for such crimes sends a message that violence against women may be tolerated.  This favors its perpetuation and social acceptance of the phenomenon, insecurity, and the mistrust in the administration of justice.  For its part, the Inter-American Court has emphasized that the creation and use of stereotypes becomes one of the causes and consequences of gender violence against women.[55]  In this sense, it found that in cases involving violence against women and impunity the States, influenced by a culture of discrimination against women, are responsible for failing in their duty of non discrimination contained in Article 1(1) of the Convention, in relation to the duty to ensure the rights of the victims and their families.[56]

49.              As regards to the duty of prevention, the States must adopt comprehensive measures to comply with due diligence in cases of violence against women.  In particular, they must have in place an adequate and effective legal framework of protection, together with policies of prevention and practices which permit action in an efficacious manner against risk factors, and a condemnation of violence against women.[57]  For its part, the UN Special Rapporteur on violence against women has provided guidelines on what measures States should take to fulfill their international obligations of due diligence regarding prevention, i.e.: ratification of international human rights instruments; constitutional guarantees on the equality of women; the existence of national laws and administrative sanctions that issue adequate compensation to women victims of violence; policies or plans of action that concentrate on the question of violence against women; making the criminal justice system and police more aware of gender issues; access to and availability of support services; the promotion of awareness and a modification of discriminatory policies in the sphere of education and the media, and the collection of data and publication of statistics on violence against women.[58]

B.        The characteristics of public policy on citizen security

50.              Human rights standards must be incorporated when building a policy on citizen security, where they serve both as a guide and as a boundary beyond which State interventions must not go.  These standards are part of the framework of laws originating in the instruments that together comprise international human rights law and in the decisions and case law delivered by the oversight bodies from the different systems of protection.  They set general guidelines, indicating the minimum degree of protection that a State must afford.  The Commission has repeatedly reminded the member states of their obligation to ensure the security of the population and to guarantee the rule of law with full respect for human rights.[59] The member states must work from this premise when defining and conducting the measures necessary to ensure the rights that are most vulnerable where crime and violence are high.  The Commission has already observed that “(…) violence and crime seriously undermine the rule of law (…)”.[60]

51.              The design, implementation and evaluation of policies on citizen security in the region have to be defined within the frame of reference that the international principles of human rights provide, especially the principles of participation, accountability and non-discrimination.  According to the most widely accepted definitions at the international level: (1) the principle of participation means that “[e]very person and all peoples are entitled to active, free and meaningful participation in, contribution to, and enjoyment of civil, economic, social, cultural and political development in which human rights and fundamental freedoms can be realized”; (2) the principle of accountability and rule of law means that “States and other duty-bearers are answerable for the observance of human rights.  In this regard, they have to comply with the legal norms and standards enshrined in human rights instruments.  Where they fail to do so, aggrieved rights-holders are entitled to institute proceedings for appropriate redress before a competent court or other adjudicator in accordance with the rules and procedures provided by law”; and (3) the principle of equality and non-discrimination means that “All individuals are equal as human beings and by virtue of the inherent dignity of each human person.  All human beings are entitled to their human rights without discrimination of any kind, such as race, color, sex, ethnicity, age, language, religion, political or other opinion, national or social origin, disability, property, birth or other status as explained by the human rights treaty bodies.”[61]

52.              Based on the preceding paragraphs, it is clear that citizen security must be thought of as public policy, defined as the guidelines or courses of action that the State authorities lay down in order to achieve a given objective and that serve to create or transform the conditions under which individuals or groups in society conduct their affairs.[62] A public policy is, therefore, a planning tool that makes efficient use of available resources, within a framework of constant participation by the social actors involved.  According to the most widely accepted definitions, public policies are: (1) comprehensive (as they systematically address human rights as whole); (2) inter-sectoral (because they impact the activities, plans and budgets of various state actors); (3) participatory (because the population in question is constantly involved and because public policies are instrumental in making societies more democratic); (4) universal (because they are all-encompassing and do not discriminate in any way); and (5) intergovernmental (because they involve agencies in central and local government).[63]

53.              Public policies must also be sustainable.  Given their nature, their execution is a middle- to long-term undertaking.  This means that a public policy’s implementation must not be measured by the length of just one administration.  Consequently, to be truly effective, any public policy on citizen security must be supported by a strong political consensus and enjoy the support of broad sectors of the population, which is also central to strengthening democratic governance in the region.  Building a sustainable policy on citizen security is difficult when a subjective sense of insecurity is manipulated for purely partisan political purposes, a scene that plays itself out in some countries of the region at election time.  This is not to say that some issues may be barred from open public debate.  Quite the contrary, the give-and-take of ideas, the introduction of alternative proposals for resolving the major issues of concern to the public, and the citizenry’s demand for accountability on the part of public authorities are all fundamental elements of a democratic society.  However, given the public’s heightened sensitivity to acts of violence or the spread of certain crimes within the Hemisphere in recent years, the issue of citizen insecurity has figured prominently in election debates, with short-term effects, more so than it has in efforts undertaken to keep society properly informed and to rally public institutions, social organizations, the mass media and the community in general to reflect upon the factors that contribute to this problem and on truly effective measures to improve the public’s living conditions in the face of the threat of violence and crime.

54.              This public policy concept cannot be fully understood without specific reference to human rights.  The purpose of public policies is to give effect to these rights in law and in practice, and in the conduct of state institutions and agents, so that member states may fully comply with their international obligations to protect and ensure.  The reference to the rights-based approach in public policies must be understood on two dimensions that, although different, nonetheless complement each other.  The standards and principles of human rights are both a guide and a roadmap for designing, implementing and evaluating public policies.  The objective of the public policies that the States craft must be to give effect to these rights.[64]

55.              Member States must devise and implement public policies with a rights-based approach as instruments to enable rigorous compliance with their negative and positive obligations, especially those undertaken within the framework of the Inter-American system with respect to the rights at stake in citizen security.  The Commission has stated the following in this regard: “The IACHR considers that there is a pressing need for states to reflect on this matter and to adopt effective measures and public policies to guarantee the safety of the population and respect for human rights.”[65]  For the Commission, a public policy on citizen security seen from a human rights-based approach is one that involves simultaneous measures in three strategic areas:  the institutional area; the normative area, and the preventive area.[66]  In this way, two essential requirements of public policy are satisfied:  that it is comprehensive and multilateral.

56.              The institutional area concerns the capacity of the state apparatus to fulfill its human rights obligations.  In the case of public policy on citizen security, the operational-institutional aspects basically concern the human and material resources assigned to the judicial branch, the public prosecutor’s office, the police force and the prison system.  Accordingly, member states must put together reliable indicators so that they are able to constantly evaluate the following, inter alia: (1) human resources, from the quantitative and qualitative standpoints; (2) the mechanisms for selecting and providing basic and specialized training to the civil servants in the institutions in question and their career service; (3) the working conditions and pay of these civil servants, and (4) the equipment, means of transportation and communications available to perform the assigned functions.  Specifically, in the case of the prison system and police force, the First Meeting of the Ministers Responsible for Public Security in the Americas recommended the following:

(…) [to] [s]trengthen and, as appropriate, establish policies and programs for the modernization of the prison systems of the member states and for the design of sustainable social reintegration models, especially for youth; (…)Promote the modernization of police management by incorporating transparency and accountability, enhance the professionalization of security forces; and improve the living and working conditions of their members (…).[67]

57.              The normative area of public policy on citizen security means adapting the legal framework to meet the need to prevent or suppress crime and violence, and to develop criminal procedure and prison management.  A state’s domestic laws must strike a balance between the authorities vested in state institutions (the judicial system, the police system and the prison system) and the necessary guarantees of human rights.  As repeatedly observed in this report, in most cases the laws and regulations pertaining to the policy of citizen security establish limits or restrictions on the exercise of certain human rights.  Hence, regardless of the circumstance, the principle of legality requires that these rules have the rank of law, both in the material sense and in the formal sense.  This was the finding of the Inter-American Court of Human Rights, which analyzed Article 30 of the American Convention on Human Rights.[68]  The provisions of international human rights law must be interpreted as a harmonious whole.  This means, on the one hand, weighing rights of equal hierarchy that often contradict each other; on the other hand, it means that the member states’ legal systems can stipulate that the exercise of certain rights may be regulated and ultimately subject to some form of restriction or limitation.[69]  The principles of legality, respect for the rule of law, the dignity of the human person, exception from law, equality and nondiscrimination establish the limits for any restriction or limitation on the exercise of human rights, specifically as regards the means that member states take to deal with the problems created by crime and violence.[70] The Commission must also underscore the fact that there are certain rights protected by the Inter-American system that can never be suspended.[71]  

58.              The preventive area includes responsibilities that are beyond the competence assigned to the judicial system and the police.  Based on the definition of public policy adopted, this area includes the non-punitive measures that other state agencies must implement (within both the central government and local governments), working in partnership with civil society organizations, private enterprise and the media.[72]  These are social, communitarian and situational measures whose purpose is to influence the enabling factors or social, cultural, economic, environmental or urban risk factors, among others, that contribute to higher rates of violence and crime.[73]  Those in charge of crafting public policy in citizen security must even consider the costs and benefits of prevention measures as opposed to measures to suppress violence and crime.[74]

59.              A public policy on citizen security must address the various dimensions of the problems that cause crime and violence.  Hence, the measures taken must be a comprehensive approach to those problems.  Having said this, and given the experience gained from the programs and projects conducted in the region in recent years, preventive activities should be the centerpiece of the measures that the member states take to deal with violence and crime.  The authorities responsible for citizen security said as much when singling out the need to adopt measures designed to

(…) [f]oster, in coordination with the pertinent institutions, public policies designed to prevent crime, violence, and insecurity, and (…) Promote educational programs, in particular in schools, and raise awareness among the different players in society regarding the prevention of crime, violence, and insecurity (…).[75] 

60.              The most successful experiences in crime prevention in the Hemisphere have focused mainly on dealing with the factors that make violence a recurring problem at the local level.  These efforts have involved measures to reduce alcohol consumption and to limit and regulate private possession of firearms.  Another important aspect of these efforts has been the work done in urban redesign, to create and maintain public-friendly areas and transportation systems.  Job centers have been created in the more violent areas of the cities.  At the institutional level, the successful programs chose to create a more professional police force and to implement programs to improve the relationship between the police and local communities.  There have been positive returns as well on security management that relies on good information about the objective and subjective reality of violence and crime.  These systems feature performance indicators, data gathering, and geo-referenced mapping in order to use the human and material resources of the institutions in the citizen security system to better advantage.  Mention should also be made of the programs designed to work on the enabling factors of violence and crime in specific areas, such as the programs to promote non-violent techniques for settling disputes in schools; early child development programs and programs that support families with children, adolescents and young adults who are more vulnerable to crime and violence.  Programs in the area of recidivism prevention are working with young adults who have already committed crimes but are being offered an alternative to imprisonment.  The idea is to make them conscious of the harm they have done and to pay for their crimes by making reparations to the victim or doing community service.[76]

61.              Given the positive obligations undertaken by the States, they have a duty to create the conditions that will enable public policy on citizen security to focus on building an efficient institutional structure capable of ensuring, to all persons, the effective exercise of the human rights most threatened by violence.  The Commission is concerned by the chronic weaknesses in the region in terms of creating institutions with which to manage citizen security properly.  These weaknesses are particularly evident in the following: (1) the treatment of victims of crime and violence; (2) privatization of security services; (3) governability of citizen security; (4) professionalization and modernization of the police forces; and (5) the intervention of the armed forces in tasks related to citizen security.

1.         The treatment of victims of crime and violence

62.              The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power” defines “victim of crime and violence” as

persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within member states, including those laws proscribing criminal abuse of power.

In the words of the Declaration, the Commission observes that a “person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim.  The term “victim” also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.” [77]

63.              The Commission has repeatedly addressed the obligations that member states have vis-à-vis victims of violence and crime, obligations that emanate from Article 1(1) of the American Convention which establishes the obligation of the States parties to guarantee the exercise of the rights and freedoms recognized in that instrument with respect to persons under their jurisdiction.  This obligation includes the duty to organize the government apparatus, and, in general, all structures through which State power is exercised, in such as way that they are capable of ensuring the full and free exercise of human rights in a legal context.  As a result of this obligation, the States parties have a legal duty to prevent, investigate, and sanction the violation of all rights protected under the American Convention.”  The Commission has established in the context of individual cases that illegal acts that violate human rights, although not directly attributable to State agents, may involve international responsibility for lack of due diligence to prevent the violation, or to clarify it in terms required by the Convention.[78]

64.              The Court makes the point that impunity leaves victims and their relatives defenseless.[79] It has also indicated that “the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.”[80]

65.              Citing the Court, the Commission has also addressed the member states’ duty to prevent and combat impunity, which is defined as “an absence, on the whole, of investigation, prosecution, arrest, trial and conviction of those responsible for violating rights protected by the American Convention.”[81]

66.              Therefore, it is clear from the preceding paragraphs that member states are responsible vis-à-vis their citizenry to conduct effective plans and programs to prevent crime and violence, based on a strategy that involves state institutions in various sectors, ranging from the police and judicial system to methods of social, community or situational prevention, which institutions in the education, health, labor and other sectors are to conduct, engaging as well national and local governments.  When, despite this preventive work, crime and violence still claim victims, the State has an obligation to provide these victims with proper treatment that conforms to international standards.  In particular, the State must have an adequate set of institutions to apply effective protocols of intervention, in the terms described by the aforementioned United Nations “Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power.”  That document sets specific guidelines regarding access to justice and compassionate and respectful treatment of victims; restitution by offenders; compensation by the State when restitution from the offender is not available; and material, medical, psychological and social assistance for the victims of crime and violence.  At the same time, the member states should take into account, where appropriate, the provisions of the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” also approved by the United Nations.[82]

67.              Member states must comply with their positive obligations with respect to the rights at stake in the area of citizen security by transforming these guidelines into an institutional normative framework and earmarking the budgetary appropriations needed to enable practical responses to the victims of violence and crime.  The normative framework and institutional practices must make provision for the training that police, judicial, health and government social services will require; the intervention protocols common to all areas of the State; and a proper infrastructure.  The Commission reiterates that “the victims’ participation in the various procedural stages guarantees the right to the truth and justice is part of the complex structure of checks and balances in criminal proceedings and encourages public oversight of government actions.”[83]

68.              The Commission has established that whenever persons identified as members of vulnerable groups are injured and there is a general pattern of negligence and lack of effectiveness to process and punish the perpetrators, the State not only fails to comply with its obligation to clarify an offence but also fails to comply with its duty to prevent degrading practices.  The Commission has indicated that

[such] general and discriminatory judicial ineffectiveness also creates a climate that is conducive to [ ] violence, since society sees no evidence of a willingness by the State, as the representative of society, to take effective action to sanction such acts.[84]

The Commission has established that in order to guarantee the right to non-discrimination, the States are required to adopt positive measures by establishing, for such purposes, distinctions based on de facto inequities.  In a case on patterns of discrimination and violence by the Police against youths belonging to an especially vulnerable social group due to its racial and social condition, the Commission indicated that the victim’s situation justified adopting positive measures in its favor, such as equal treatment before the law (Article 24 of the American Convention), and respect for the presumption of innocence (Article 8 of the American Convention).[85]  The Commission has indicated that in those cases,

[f]rom this perspective, the failure to take affirmative measures to reverse or change de iure or de facto discriminatory situations harmful to a specific group produces international responsibility on the part of the State. (…) From another perspective, although the laws (..) are not discriminatory and prima facie do guarantee apparent equality, in reality the situation is otherwise, as the bias of the State police, according to existing studies, indicates the use of unnecessary violence towards those subject to their procedures, particularly those individuals with characteristics of the black race and who reside in marginal areas (favelas).  This conduct often leads to the death of the subject.  It is for this reason that the mere promulgation of laws that have no practical effect does not guarantee the full enjoyment and exercise of rights.[86]

The formal existence of legal provisions guaranteeing equality is not sufficient.  Rather, such provisions must be effective, that is, they must yield the results or responses needed for the protection of the rights embodied in the Convention.

69.              Although the services the State provides are to be universal, it must ensure that adequate systems are in place to treat victims of violence or crime who are women, children or adolescents, senior citizens, the indigenous population or Afro-descendent population.[87]  In the past the Commission has observed that the member states must have specialized personnel in all institutions of the citizen security system, who are prepared to provide quality service to the entire population, thereby fulfilling the principles of equality and nondiscrimination recognized in Article 24 of the American Convention.[88]

2.         Privatization of citizen security

70.              In the last twenty-five years, the number of private firms offering security services has increased steadily in the Americas.  In many cases, the employees of these businesses far outnumber the police in the member states.  Recent studies show how the number of private security services is growing worldwide.  These studies find that in the period that preceded the current global economic crisis, private firms or industries involved in security on the world’s major markets experienced extraordinary growth rates that ranged between 8% and 9%.  This was twice the rate of growth of the global economy as a whole, and was exceeded only by the growth in the automotive industry during that same period.[89]  In Latin America, the growth in the market for private security goods and services is estimated at around 11% over the last 15 years.[90]

71.              The Commission has made some opportune observations about certain problems associated with the increasing involvement of private firms in delivering security services.  It has highlighted the fact that “because private police services are not legally registered, the State has no control over their sometimes criminal activities, which is a factor enabling abuses.”  The Commission also observed the lack of procedures to control private security firms and expressed its concern over the complaints lodged alleging violations of individual rights by employees of private security firms.[91]

72.              To be in compliance with their duty to ensure the human rights at stake in citizen security policies, the member states must undertake the mission of preventing, deterring and suppressing crime and violence, as theirs is a monopoly on the legitimate use of force.  The privatization of the functions involved in citizen security is a departure from the concept of human rights, where the State is responsible for guaranteeing that citizen security is defended, protected and ensured.  Instead, citizen security becomes a mere product to be bought on the market and, in most cases, is available only to those sectors of society with the means to buy it.

73.              In countries where the law allows private security firms to operate according to the rules governing business activity, the presence of these firms must be properly regulated by public authorities.  The domestic legal system must regulate the functions that private security services can perform; the types of weapons and materials they are authorized to use; the proper mechanisms to oversee their activities; introduction of licensing, and a system whereby these private security firms are required to report their contracts on a regular basis, detailing the typing of activities they perform.  Likewise, the public authorities should demand compliance with selection and training requirements that individuals hired by these private security firms must meet, specifying which public institutions are authorized to issue certifications attesting to the firms’ employees.[92]  By the definition that the Commission adopted in this report, private firms only offer security for assets and valuables, and are not intended to augment or supplant the member states’ obligations in the area of citizen security, as the State’s responsibility for the protection of human rights is a non-delegable duty.