May 29, 2009

IV. Failures to Protect and Investigate

Honduran authorities have the obligation under international law to prevent abusive behavior by police and other officials, and to investigate, prosecute, and provide effective remedies when violations occur.[84]

The Inter-American Court of Human Rights has held that “the State has the obligation to use all the legal means at its disposal to combat [impunity], since impunity fosters chronic recidivism of human rights violations and the total defenselessness of victims and their relatives.”[85] It is only by investigating, prosecuting, and providing effective remedies that impunity can be fought.

Officers in Honduras who vigorously enforce provisions of the Law on Police and Social Affairs that involve vague invocations of morals are much less stringent in applying laws that place obligations on themselves.[86] Police regularly fail in providing protection to transgender people.

Failure to investigate crimes is common in Honduras. According to Amnesty International, the government has yet to resolve the disappearance of 184 people during the 1980s.[87] According to human rights organizations such as the Committee for the Defense of Human Rights (Comité para la Defensa de los Derechos Humanos en Honduras, CODEH), violations of the rights of certain groups, including young people, women, and people with various vulnerabilities, are less likely to be investigated than violations of the rights of others.[88] Our interviews suggest that the cases of transgender people are almost never investigated.

Prejudices within law enforcement agencies may lead to bias in police investigations of crimes against transgender people.[89] Investigative independence may also be at risk when the perpetrators are members of the police force.[90]

Interviewees routinely told Human Rights Watch that their claims are not investigated. Police failure to respond undermines access to justice, because people lose the last shreds of confidence in the system. Some do not even bother to file complaints any longer.

Failure to Investigate: Losing Faith in the System

Cynthia, 21 years old, told Human Rights Watch that she “dresses and feels like a woman” day and night. She recounted how a police officer, member of the national preventive force, attacked her in September 2007.

I was on the street and a car stopped next to me at around 10:00 p.m. The man in the car asked how much I charged. I told him that I could get in and we could negotiate the price while going around the block. We drove off and I told him I charged 500HNL [US$26]. He said, ok, start with oral sex. But I told him he had to pay me up front, like everyone else. He did not like this and got really angry. We started to fight and he took out his gun and said, “Then I’m going to kill you!” We fought and the gun discharged. Saying ‘Since I didn’t get you...’ he hit me then with the back of the gun on the head. I don’t know how, but I manage to throw myself out of the car. I tried to fix myself up. I walked to my apartment and then took a taxi to Escuela Hospital.
I remember it was a Monday because the day before my friend Juliana was attacked by the same man. I still remember the guy. I still see him around but I hide from him. He is a policeman. That night in the car he showed me his badge and said ‘I’m a policeman, they cannot do anything to me—and you’re not worth a penny, anyway.’[91]

Cynthia went to the Prosecutor’s Office in Tegucigalpa to initiate a claim against her attacker, and provided her testimony. Two years later, she still has not heard back from the office despite repeated enquiries.[92] Human Rights Watch has on file the documentation of other 10 other claims presented before the National Bureau for Criminal Investigation (DGIC) and the Ombudsman’s Office by transgender people in 2008, of which only one has an assigned prosecutor.[93]

In early 2004, the LGBT organization Comunidad Gay Sampedrana in San Pedro Sula sent a letter to the Office of the Attorney General asking for information on the status of investigations into over 200 crimes against LGBT individuals.[94] The Human Rights Unit of the Office of the Attorney General referred the letter to the Common Crime Unit of the Attorney General on September 17, 2004. Comunidad Gay Sampedrana never got a response.[95] Similarly, Red Lésbica Cattrachas, a group based in Tegucigalpa, asked on May 31, 2008, for a meeting with Minister of Security Jorge Alberto Rodas to discuss violence against transgender people and the lack of investigations by police. It never received a response.[96]

LGBT activists recognize that there is a general sluggishness on the part of state agencies to respond to citizen’s communications, yet in cases concerning the LGBT community there is no response at all. The unresponsiveness to communications sent by these organizations suggests a lack of will by the state of Honduras to broach the subject of the violence faced by LGBT communities. When asked why so few claims filed by LGBT people result in prosecutions, lawyer Grisel Amaya, a member of the Office of the Attorney General in charge of the Women’s Unit, responded, “The problem within the judiciary is that if a man comes in dressed as a women, this person is not taken seriously.”[97]

Cynthia Nicole, a prominent human rights/transgender rights defender, 32 years old when we spoke to her, agreed with Amaya. She said,

I have filed reports many times. None of the claims have had a response. Here in Honduras it seems that cases mount, and authorities follow up only on cases with the strong backing of people high up. The cases from minorities like us are not taken into account. They put them away and archive them. I have never seen someone go to prison [for such a case]. Police are friendly to me, but when we talk about resolving cases, well, they don’t. Our human rights abuses are not a priority for them.[98]

Unknown assailants killed Cynthia Nicole a few weeks later on January 9, 2009.[99] The process is in the first phase of investigation by the new National Bureau for Criminal Investigation (DNIC); no suspects have been caught. A member of the DNIC told us that an internal obstacle in the investigation of this and other crimes against transgender people is “the number of homophobes in it [the DNIC].”[100]

The fact that Cynthia Nicole’s murder is even being investigated, according to Sandra Ponce, is “above average for violence against transgender people.”[101] This is consistent with our findings: none of the other victims we spoke to were aware of active investigations into their cases, including those who initiated cases with the prosecutor’s office.

Failure to Protect: Police Inaction

Unknown men attacked Diana, a 23-year-old trans girl, as she calls herself, a few days before we interviewed her in 2008. Policemen stood by and watched.

Last Tuesday, [December 9] I was standing behind Diunsa [a store outside the center of San Pedro Sula where transgender people do sex work] at around 10:00 p.m. The policemen were half a block away from me. I was standing on the street when a bus passed by. A group of men got off the bus and started to throw rocks at me. I started to run. One of the guys followed me with a gun, took my purse, and ran away. The police were standing near Hotel El Sauce. I started to scream asking for their help, but they just stood there! I didn’t file a complaint because I have done so before and it leads nowhere. Another time, around three years ago, I got to the police station full of blood and they did not even listen to me. So what is the point?[102]

Diana is not alone in her doubts about of the police’s willingness to protect her or punish those who attack her. Bibi, now 23, started working as a sex worker at 16. She told us she is used to abuse and violence, and to lack of response from the police. The latest incident of brutality in November 2008, helps explain why.

I work near the Maya Hotel. That night a white car stopped next to me. I talked to the guy and got in the car. As we drove off, the guy was nice to me, but then he got aggressive. He grabbed me by the hair and since I had a few drinks I couldn’t react. He started to get really violent. At some point he stopped the car and I tried to climb out. I got the door open as he got out for a second, but he then climbed back in again with a gun in his hand. He held me by the hair. He was really angry and really violent. Then I heard a shot! I fell on the sidewalk and I saw him drive away. My leg started to shudder and the more I moved, the more blood came out. I started to scream for help. A police car stopped by, they looked at me, and left.[103]

Cynthia, her friend and also a transgender sex worker, saw the shooting: 

I saw a guy in a white car with shaded windows talking to Bibi. At that moment I got in another car with a client. Minutes later I heard a shot. I immediately got out of the car. When I went back I saw Bibi on the ground I heard her screaming and rushed to get the police. I went to the nearest police station [a women’s police station], but they didn’t do anything.[104]

We asked Bibi why she thought the police did not stop. “I don’t know why,” she said. “Indifference to someone like me, I guess.” Bibi was relieved that the man only shot her once. She spent 16 days in Escuela Hospital, had surgery, and a cast put on her leg. Bibi decided it would be useless to file a claim against her attacker—or against the police officers who refused to assist her.

Similarly, Mónica, 18, was still shaken up by the latest attack behind Diunsa, where she usually works.

A client almost killed me. He wanted sex without a condom and I told him [I wouldn’t do it] without a condom. He took out a gun and put it against my head. So what I did was to give him the condom and I told him to read it to show him the risks for him and for me. In the meantime I took my shoes off and when I got the chance I opened the door and ran away. He shot at me but didn’t get me. I recall we were in a dark place far away from the city. It was a real trauma that time. I was so scared I did not go out for two months because of the trauma.[105]

When we asked her whether she had gone to the police, she said she felt it would be pointless. She mentioned the names of five other friends who had filed complaints that had had no outcome.

[84]ICCPR, art. 2(3)(a); American Convention on Human Rights (ACHR), arts. 1, 10, and 25. Similarly, the Inter-American Convention to Prevent and Punish Torture requires states to “take effective measures to prevent and punish torture” and “other cruel, inhuman, or degrading treatment or punishment within their jurisdiction” (Article 6). See Human Rights Committee, “General Comment 31,” CCPR/C/21/Rev.1/Add.13, para. 8. Also see the jurisprudence of the Inter American Court on Human Rights (IACtHR) in Villagrán Morales v Guatemala (Series 63, Judgment: 1999) para. 139; Godínez Cruz v Honduras (Series 5, Judgment: 1989) para.185 and the jurisprudence of the European Court in X and Y v The Netherlands, App. 8978/80, para. 32; Osman v United Kingdom, App. 87/1997, para. 107.

[85]IACtHR, Paniagua Morales et al. v Guatemala, (Ser. C) No. 37 (1998), March 8, 1998, para. 173.

[86]Article 41 of the law states that “[p]olice are obliged to provide, without delay, support to every person in urgent need of assistance to protect their life and honor, property, home inviolability, personal liberty and tranquility.” Article 39(2) includes the obligation on police to “prevent the imminent or actual commission of a crime or police infraction.”

[87] Amnesty International, “Zero Tolerance … on Impunity: Extrajudicial executions of children and young people since 1998,” AMR 37/001/2003/s, February 23, 2003, http://www.amnesty.org/es/library/asset/AMR37/001/2003/es/179e66d4-d752-11dd-b024-21932cd2170d/amr370012003es.pdf (accessed April 20, 2009).

[88]See Comité para la Defensa de los Derechos Humanos (CODEH), “Crime, Delinquency, and Impunity, Report 2008, http://www.codeh.hn/investigacion.html (accessed April 30, 2009).

[89]See CAT, Articles 11 and 12; American Convention to Prevent and Punish Torture, Article 8; Commission on Human Rights, Report of the Special Rapporteur Nigel Rodley, submitted pursuant to resolution 2000/43, E/CN.4/2001/66 , January 25, 2001 (accessed April 30, 2009), para. 1310, for the requirement of impartiality in any investigation.

[90] See IACHR “Report on the Situation of Human Rights in Mexico”, September 24, 1998, OEA/Ser.L/V/II.100, par. 3233, on how the lack of independence negatively impacts impartiality. This is confirmed in Marritza Urrutia v Guatemala, par. 119.

[91]Human Rights Watch interview, Cynthia, Tegucigalpa, February 18, 2009.

[92]Ibid., Office of the Attorney General, Center for Reception of Claims, Case No. 0801-2008-36722 (on file with Human Rights Watch). Human Rights Watch asked prosecutors about this case, but it was not in their files.

[93]See above, fn 63.

[94]Office of the Attorney General, Memorandum No. FEESJ-039-4, September 17, 2004 (on file with Human Rights Watch).

[95]Human Rights Watch interview, Carlos, February 18, 2009.

[96]The Ministry acknowledged receipt of the letter on June, 3, 2008.

[97] Human Rights Watch interview, Grisel Amaya, Tegucigalpa, December 2, 2008.

[98]Human Rights Watch interview, Cynthia Nicole, Tegucigalpa, December 5, 2008.

[99]According to testimonies by other rights activists, three unknown men in a blue car shot Cynthia Nicole in a drive-by shooting in Barrio Guacerique in Comayaguela, a town just outside Tegucigalpa. She received three shots in the chest and one in the head. Human Rights Watch interview, Indyra Mendoza, Tegucigalpa, February 16, 2009.

[100] Human Rights interview, name withheld, Tegucigalpa, February 17, 2009.

[101]Human Rights Watch interview, Sandra Ponce, Tegucigalpa, February 16, 2009.

[102]Human Rights Watch interview, Diana, San Pedro Sula, December 11, 2008.

[103] Human Rights Watch interview, Bibi, Tegucigalpa, February 8, 2009.

[104] Human Rights Watch interview, Cynthia, Tegucigalpa, February 8, 2009.

[105] Human Rights Watch interview, Mónica, San Pedro Sula, December 11, 2008.