COMPREHENSIVE REPARATION FOR VICTIMS OF GENDER VIOLENCE: FEMICIDE.

Paragraph I of Article 113 of the Political Constitution of the State establishes that any person whose rights have been violated and who has been left unprotected by the State, suffering harm as a consequence of an unlawful act, has the right to be compensated, repaired, and redressed for damages in a timely manner. In this regard, Article 37 of the Penal Code and Articles 14 and 36 of the Code of Criminal Procedure establish that any person criminally responsible is also civilly liable and is obligated to repair the material and moral damages caused by the commission of a criminal act. Likewise, Article 91 of the Penal Code determines that civil liability extends not only to the victim, but also to their relatives and includes both the restitution of the property to the offended party and the reparation of the damage caused, as well as compensation for all damage caused, provided that its connection with the unlawful act condemned and attributed to its author is fully proven.

In full agreement, Article 984 of the Civil Code defines compensation for an unlawful act as the intentional or negligent act that causes someone unjust harm and obliges the responsible party to provide compensation; to determine in Article 984 of the same normative compendium, that in order to quantify the loss of a damage, both the direct loss suffered by the victim and the lack of profit as a consequence of the unlawful act must be valued, as well as the moral damage suffered.

However, our normative system in general, as I have outlined above, while it does recognize reparation for damages to victims affected by an unlawful act, does not specify how the damages to be repaired should be classified and quantified, especially in crimes with a gender perspective such as femicide, crimes of violence in general, and crimes against sexual freedom, which are covered by Law No. 348 and deserve special consideration for the purposes of reparation. It is in this understanding that the prosecution, trial, and reparation of material and immaterial damages resulting from an unlawful act committed against a woman or vulnerable persons must be addressed beyond our ordinary laws, through special laws such as Law No. 348 - Comprehensive Law to Guarantee Women a Life Free of Violence, which provides for all investigative procedures leading to the conviction of the aggressor, but with a gender perspective, subsequently emphasizing the reparation of material and immaterial damages applying this same criterion, since this law, as established in its article 1, goes beyond ordinary laws; “…it is based on the constitutional mandate and on the International Human Rights Instruments, Treaties, and Conventions ratified by Bolivia, which guarantee all persons, particularly women, the right not to suffer physical, sexual, and/or psychological violence both in the family and in society.”

Regarding reparation of damages, Law No. 348 defines its objective as, “… the duty to establish comprehensive mechanisms, measures and policies for the prevention, care, protection and reparation of women in situations of violence, as well as the prosecution and punishment of aggressors, in order to guarantee women a dignified life and the full exercise of their rights to Live Well”; Article 86 defines reparation within its guiding principles as: “… compensation for the material and immaterial damage caused, to which every woman who has suffered violence is entitled…”, whose special procedure and jurisdiction after the conviction sentence has been issued against the aggressor as redefined in subsection 3) of article 72 of the Code of Criminal Procedure modified by the aforementioned Law No. 348 and article 98 of Law No. 348, corresponds to the now called “Sentence Judge in Matters of Violence Against Women”, who is now qualified, prepared and specialized to know and carry out the procedure for the reparation of the damage but with a gender perspective, when the case warrants it. However, as explained above, while it is true that Law No. 348 establishes that reparations for damages must be carried out taking into account the intersectional approach and the gender perspective, beyond determining that, as a result of a conviction for an offense committed by the aggressor against a woman in a situation of violence or vulnerable persons, it is the Judge of Sentencing in Matters of Violence Against Women who must determine the reparation of the material and immaterial damages of the victim and her family, it does not establish the criteria for arriving at a reasonable quantification, nor what elements encompass or contain the material and immaterial damages, much less do other ordinary laws of the state; it is for this reason that, as established in the aforementioned Article 1 of Law No. 348, the procedure, judgment and reparation of damages regulated by this law are governed by the Political Constitution of the State, International Conventions and Treaties as the guiding normative and regulatory framework based on Human Rights, such as the Inter-American Court of Human Rights.

Thus, international treaties and conventions determine that judging, processing, and reparation with a gender perspective gives judicial authorities transformative tools that allow them to understand the law beyond legality and formality as a means to achieve respect for the rights and guarantees of women and vulnerable people, since the traditional concept of judging implies the judge´s submission to the law in order to issue a positive or negative sentence; however, in matters of gender, it must be subject to the constitutional framework.

Based on this regulatory framework, the “Protocol for judging with a gender perspective applicable to all authorities in Bolivia dated November 22, 2016” was implemented, which on page 129, determines that every human rights violation produces damage that imposes on the State the duty to fully repair it; reparation that consists of a set of measures, pecuniary and non-pecuniary, that aims to restore the rights and improve the situation of the victims, which has five dimensions: “restitution (restoring the situation of the victim to the moment prior to the violation), compensation (reparation for physical or mental material damages, expenses incurred, loss of income), rehabilitation (required psychosocial and medical care), satisfaction (public and symbolic recognition) and guarantees of non-repetition (adoption of structural measures that seek to prevent the violation being repeated); reparation measures, which are developed in a more specific way and must be adopted by the justice administrators of the Plurinational State of Bolivia in a more precise manner based on the “RECOMMENDATIONS FOR INTEGRAL REPARATION IN CASES OF FEMICIDE AND FEMINICIDE IN LATIN AMERICA” drafted and created by the Organization of American States, United Nations Women – Regional Office for Latin America and the Caribbean – and the Follow-up Mechanism of the Belém do Pará Convention (MESECVI) of the Inter-American Commission of Women, within the framework of the Spotlight Initiative, an alliance between the United Nations System and the European Union to prevent and eliminate violence against women and girls in the Latin American region by 2022.”

This responsibility arises from acts committed by both state agents and non-state agents, such as private individuals, when it is verified that the state has not exercised due diligence to prevent, punish, and redress them. In both cases, the state also has the responsibility to redress the damages caused to victims or survivors, maintaining a balance between identifying beneficiaries, assessing the extent of the damage caused, and determining the most appropriate measures for redress.

Alongside the evolution of this state responsibility, the right of victims of human rights violations, including women, to an effective remedy has been progressively guaranteed. This right includes the right to seek reparations before national courts and, eventually, before international justice mechanisms. In general terms, reparations are a process that seeks to restore the dignity of victims of human rights violations through measures that alleviate their suffering, compensate for the social, moral, and material losses they have endured, and restore their civil rights.

On this point, standards have been developed within the universal human rights system, subsequently focusing the analysis on the Inter-American Human Rights System as the regional legal framework applicable to Latin America. It is worth noting that in recent decades, specific and original regional jurisprudence has developed on this matter, establishing legal standards that serve as benchmarks for justice system operators in all countries of the region when addressing reparations, particularly in cases of gender-based violence against women.

Thus, once the victims of a human rights violation resulting from an unlawful act have been identified, it is necessary to determine the damages suffered in order to establish appropriate reparations. The jurisprudence of the Inter-American Court of Human Rights indicates that reparations for the consequences of a human rights violation must be ordered when those consequences meet three requirements: they must exist, be directly attributable to the violation, and have created harm that cannot be fully repaired by the cessation of the action that caused it. Furthermore, the Court has adopted a broad and comprehensive perspective, recognizing that a human rights violation can generate harm in two main categories: material damages and non-material damages, which encompass the following aspects for the purpose of quantifying reparations:

Intangible damages
Psychological damages
Physical damages
Damage to life project
Collective or social damages
Moral damages

Material damages
Emergent damages
Loss of income (loss of profits)
Loss of family assets

Our procedural culture hardly applies these international standards when making a claim for damages resulting from an unlawful act, due to the limited information and training of legal professionals in this area. Therefore, after the conclusion of a criminal trial, which ends with the execution of the defendant´s sentence, the parties, in accordance with their rights to receive fair compensation that addresses all the material and non-material losses described above, must seek the assistance of an expert in the field to file a claim for damages that meets all these requirements. At “DIAZ ABOGADOS ESTUDIO JURIDICO”, we have the knowledge and experience to formulate a claim for damages that restores the victim´s dignity and returns them to the economic, psychological, and social standing they enjoyed before the crime was committed, or that allows him to cope with the harm and pain resulting from the crime without suffering any kind of difficulty.

MSc. Sergio Diaz Gutiérrez

Master in Criminal Law and Criminal Procedure