Chapter 5B.
139. Indigenous women and girls face a variety of obstacles in their access to justice, most of which are closely connected to the discrimination, marginalization, and vulnerability to which they have been subjected historically. Discrimination in the official justice system, coupled with the high rates of marginalization and physical, emotional, and sexual violence they are subjected to, contributes to impeding their access to justice.329 Laws, public policies and programs aimed at addressing the particular issues faced by indigenous women, as a specific population group, are in short supply, inasmuch as most of them tend to be targeted toward either indigenous peoples or towards women in general.330 As the IACHR has underscored in its report Missing and Murdered Indigenous Women in British Columbia, Canada, States must first conduct consultation processes with indigenous women and then adopt the necessary initiatives, programs, and policies considering their needs and concerns.331
140. The obstacles most affecting indigenous women’s access to justice in the Americas are geographic, economic, cultural, and linguistic. The IACHR has noted in the past that geographic remoteness of indigenous territories and the lack of State services may force indigenous women to walk, sometimes for several days, in order to get to the nearest city to file a complaint, which also poses additional problems in introducing evidence to sustain their claims.332 In its response to the questionnaire, the State of El Salvador indicated that one of the measures implemented to ensure indigenous women’s physical access to the institutions of justice was to introduce “Justices of the Peace” courts throughout the country.333
141. When women arrive in the towns or cities where the authorities are located, they also face economic problems, feel uncomfortable in an urban setting, and lack command of the language used in the courts of law.334 It is very often the case that indigenous women are not provided interpreters for some or all of the proceedings, and are also confronted with the ethnic and cultural insensitivity of the operators of justice. 335 Additionally, justice officials are frequently unfamiliar with international human rights instruments of a collective and individual scope which are applicable to indigenous peoples, and rarely apply the ethical framework of women’s human rights.336 As such, many complaints to the authorities will simply be dismissed or set aside, even before an investigation has taken place.
142. In this regard, the UN Committee on the Elimination of Racial Discrimination (hereinafter “CERD”) has voiced its concern over the failure of the Office of the Special Prosecutor for Ethnic Groups and Cultural Heritage of Honduras to investigate, prosecute, and punish allegations of crimes against indigenous and afro-descendent people. Consequently, said Committee urged Honduras to take the necessary measures to ensure access to justice of indigenous peoples, both individually and collectively depending on the circumstances.337 Likewise, CERD noted its concern over the difficulties encountered by indigenous peoples in Guatemala to gain access to justice, particularly because of the failure to recognize and apply the indigenous legal system, as well as the lack of sufficient interpreters and courtappointed defense attorneys.338 The United Nations Human Rights Council has also taken a position to this effect, regretting the lack of interpreters in Guatemala and urging the State to “take any measures that may be necessary to enable access to justice for all in their own language, by adopting effective policies to hire bilingual officials, by creating the number of interpreter positions as required, and adequately training professionals to perform the appropriate duties.”339 The IACHR also insisted in its 2016 country report on Guatemala that “[i]n a country with a large indigenous population, one of the key issues for the Commission is bilingual access to justice, which presupposes ensuring that in the state justice system indigenous persons can be heard in their own language and can express themselves fluently in the criminal proceeding, in accordance with the right recognized in Article 8(2)(a) of the American Convention and Article 12 of ILO Convention 169”. 340 Regarding El Salvador, CERD has noted the difficulties that indigenous peoples encounter in attempting to gain access to justice, stemming from the high cost of litigation, and the lack of judicial services in remote areas.341
143. While the above-cited problems affect indigenous peoples in general, based on a diagnostic assessment of indigenous peoples in Central American conducted by the Office of the United Nations High Commissioner for Human Rights and the Asociación de Investigación y Estudios Sociales (ASIES), indigenous women and girls are least able to exercise their right to access to justice, in both the official and the indigenous justice systems.342 The CEDAW Committee has expressed its concern over the situation unfolding in Argentina, where even though “legislation provides for women’s access to justice, their actual ability to exercise that right and bring cases of discrimination before the courts is limited by factors such as a lack of information on their rights, linguistic barriers, especially for indigenous women, and other structural difficulties in accessing the courts.” 343 Likewise, the CEDAW Committee has voiced its concern over the fact that in Costa Rica, indigenous women had limited access to free legal assistance services. 344 The Committee has also urged Honduras to provide legal assistance and eliminate all impediments standing in the way of women who resort to courts, including fees for bringing actions and filing suits, as well as protracted delays in judicial proceedings.345
144. The Inter-American Commission has received information from the Office of the United Nations High Commissioner for Human Rights in Guatemala indicating that indigenous women in that country do not usually report it when they are victims of intrafamily or sexual violence and of other violations, because they may be unaware of their rights, are concerned about being victims of further assaults, receive threats on their families, or are ashamed because of what their community will say.346 These women have also claimed that they are afraid of being ignored and mistreated by judicial officials. When the women have opted to report these crimes, the lack of adequate and timely access to justice ends up making them feel guilty for doing so because it affects their families.347 As has been noted above, the IACHR has observed that in many regions of the country, these indigenous women are unable to be understood in their own language, which adversely affects them whether they appear as victims, or as defendants charged with committing an alleged offense.348
145. The CEDAW Committee has expressed concerned over how unaware indigenous women in Guatemala are about their rights.349 For this reason, it has called on the State of Guatemala to take proactive measures to deal with the problem, such as creating general basic legal education programs, which take into account illiteracy and the languages these women speak.350 By doing so, indigenous women can have the tools to learn about their rights and acquire the ability to exercise them. In light of a similar situation in Honduras, the CEDAW Committee recommended that the State conduct sustained legal awareness and public education campaigns in order to encourage and empower women.351
146. Obstacles faced by indigenous women and girls in accessing justice have also been underscored by the Inter-American Court in the cases of Rosendo Cantú v. Mexico and Fernández Ortega v. México, as indicated earlier. In the case of Valentina Rosendo Cantú, the Inter-American Court ruled that the State had obstructed her access to justice by not providing her with timely and specialized medical care when she filed the complaint, and for not acting with due diligence to investigate and punish the rape of which she was the victim.352 The Court identified certain omissions and failures committed by the State in the investigation, such as not providing Valentina Rosendo Cantú the assistance of an interpreter and, therefore, requiring her husband to give her statement; and not ensuring that, in filing the complaint of rape, minimum conditions of privacy were respected, as required when this type of offense is involved.353
147. In both this case and that of Inés Fernández Ortega, because it was impossible for them to report and receive information in their language, the Inter-American Court held that their situation of vulnerability based on their language and ethnicity was not taken into consideration, which amounted to a de facto infringement of their right to access to justice.354 The Court also emphasized that States have the obligation to refrain from taking actions, which directly or indirectly create situations of de jure or de facto discrimination.355
148. Some States of the hemisphere have institutions designed to ensure access to justice for women; however, so far, this has not translated into an actual improvement in the situation of indigenous women. With regard to Honduras, the CEDAW Committee has voiced concern because, despite the existence of an Office of the Special Prosecutor for Women, women continue to encounter obstacles in bringing cases of discrimination before the courts, due to factors such as poverty, lack of legal assistance, and information about their rights, as well as the attitudes of justice officials.356 The IACHR has received information from civil society indicating that the special police station for women, the Comisaría de la Mujer, does not always complete the process of filing complaints brought by indigenous women; rather, when cases are postponed and women do not follow up, they simply close the case files.357
149. The Commission also underscores that discrimination and the barriers to adequately access justice also have serious judicial consequences on indigenous women, in terms of their over-representation in the prison population. For example, as documented in the report on Missing and Murdered Indigenous Women in British Columbia, Canada, statistics from 2008-2009 reveal that “Indigenous women represent 28% of women incarcerated and 37% of women sentenced to prison, although they only constitue approximately 4% of the Canadian adult population.”358 These statistics were far worse for indigenous female youth in Canada, with “[…] indigenous female youth [representing] 6% of the Canadian female population yet 44% of the female youth in custody.”359 In fact, data on the indigenous prison population suggests that the incarceration of women has become significantly higher than that of men, confirming that the intersectionality of discrimination affects indigenous women specifically increasing their vulnerability and lack of access to justice.360
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