Chile’s Constitutional Moment is an Opportunity to Enhance Social Rights

To do justice to such an ambitious goal, the Chilean process should not leave anyone behind. This is a historic occasion to make the case for social rights.

A Chilean man casts his vote at the National Stadium in Santiago (Chile) in October 2020. The more than 2,700 voting centers enabled in Chile for the historic constitutional plebiscite where about 14.8 million Chileans decided at the polls that they wanted to replace the current Magna Carta, inherited from the dictatorship of Augusto Pinochet (1973-1990), and which body should draft the new text, a vote that is considered the more important since the return to democracy. EFE/Alberto Valdés

By Dr. Koldo Casla, Lecturer in Law, University of Essex

In October 2019, a series of protests against public transport fare increases in Santiago unveiled serious cracks in Chile’s economic and social model. “It’s not 30 pesos ($0.40), it’s 30 years,” screamed many of the demonstrators, three decades since the end of Pinochet’s dictatorship. While new leaders have been democratically elected in the last three decades, the socio-economic pillars that underpinned the military regime remained intact. Until now.

The popular protests caught the Chilean political and economic establishment off-guard. Only when the government, opposition, and civil society agreed to initiate a process to reform the 1980 constitution did things calm down, and they were able to find a way forward.

A referendum in October 2020, in the midst of the COVID-19 pandemic, confirmed Chileans’ determination to elect a new convention in charge of writing a new constitution for the country. Representatives were elected in May 2021, and the convention began its proceedings in July. It is the first constituent assembly with guaranteed parity between men and women, as well as minimum guaranteed representation for Indigenous people. The president of the constitutional convention is Elisa Loncón, an academic of  Mapuche descent who was born into poverty.

Neoliberalism’s first theatre of operations in the 1970s, Chile now is experiencing a moment of hope and potential transformation. A significant number of the 155 representatives elected to the constitutional convention pledged to support strong social services, greater equality, and labor rights. Chile has the opportunity to take social rights seriously in this exciting new political process.

Pinochet’s regime adopted the 1980 constitution as an attempt to provide a veneer of legitimacy to the dictatorship. Still in force today, and despite multiple reforms, the constitution contains a number of difficult procedural requirements, such as preventive constitutionality control by the constitutional court, or supermajority requirements in both chambers, particularly insurmountable with the anti-proportional electoral system in place until 2018. These authoritarian enclaves made it difficult when not impossible for left-leaning governments to bring about law and policy changes, let alone progressive constitutional amendments.

The 1980 constitution is also the embodiment of the neoliberal model: It prioritizes private property and a market-driven economy, but it does not guarantee education, healthcare and social security for those in need. The constitution only recognizes the freedom to choose between different providers, for example, in relation to health and social security, but it does not ensure a minimum content for these rights; the right to education and the right to a healthy environment are not justiciable, and the right to adequate housing is nowhere to be found.

In 2016, the UN Special Rapporteur on Extreme Poverty and Human Rights concluded that “the formulations used (in the 1980 constitution) do not generally conform to international standards and are not firmly anchored in the language of rights and obligations. The methods of implementation envisaged are relatively open-ended and non-empowering and do not explicitly include judicial action” in relation to social rights.

Under the 1980 constitution, social rights are not a matter of public service; they are instead tradable goods only available to those who can afford them. And affordability is  unevenly distributed as a result of high levels of inequality. Despite economic growth in recent decades, Chile has one of the highest rates of income inequality in the OECD, both in terms of income and wealth distribution, as well as one of the lowest rates of public spending.

Back in 2015, the UN Committee on Economic, Social and Cultural Rights recommended that Chile should “guarantee the comprehensive recognition and necessary legal protection of economic, social and cultural rights” in a new constitution, “while ensuring that the constitutional reform process is conducted in a transparent and participatory manner.”

Besides international human rights obligations, there is a democratic case for social rights in Chile’s constitutional moment. The fairness of a constitution depends on the extent to which human rights, including social rights, are enshrined in it, with proper accountability for public authorities. At the same time, the democratic legitimacy of a constitution depends on the extent to which the opinions of those most affected by it are taken into account. In a democracy, only when participation is open, transparent, and meaningful, do citizens have reasons to see a constitutional settlement as their own, even when they may not necessarily agree with everything it says.

To do justice to such an ambitious goal, the Chilean process should not leave anyone behind. This is a historic occasion to make the case for social rights. A key responsibility is to listen carefully to those most affected by public policies, by authorities’ decisions, and by their omissions.

That is precisely the immense challenge and opportunity Chile is facing at the moment. The Human Rights Centre of the University of Essex (UK), the University of Concepción (Chile) and the Global Initiative for Economic, Social and Cultural Rights (GI-ESCR) have joined forces in this historic moment of hope and civic responsibility to provide evidence and analysis for the constitutional convention. 

The three partners have brought together fifty academics and practitioners, half of them Chilean and the other half from a wide range of countries, including Argentina, Brazil, Canada, Colombia, England, Ireland, Mexico, Scotland, South Africa and the United States. Together, they are the authors of a new book, freely accessible online in Spanish, that looks at different models of recognition of social rights.

In more than thirty chapters, contributions include legal and multidisciplinary studies about the theoretical foundations of human rights, the role of the judiciary and other accountability bodies, the content of rights (social security, work, health, housing, education, water and sanitation, and the right to a healthy environment), the necessary protection for groups at greater risk of harm, disadvantage and discrimination (indigenous people, persons with disabilities, women, children, and older people), and lessons learned from other constitutional processes around the world (particularly, Brazil, Colombia and South Africa). Besides the international and comparative perspectives, the book also examines what the constitutionalization of social rights may mean in Chile’s legal order.

The majority of Chilean people are pushing for a new constitutional framework that could realize all human rights, including social rights, for everyone. The challenge goes beyond the mere architecture of public institutions and the technical legal formulation of rights. This is an opportunity to revisit the foundations on which Chilean society is built, the type of country and the sort of future Chileans deserve.

This piece was first published on the Open Global Rights website and is reproduced here under a Creative Commons licence. The original post can be accessed here.

The University of Essex has issued a press release and a Q&A about the publication. The Human Rights Centre is hosting an online event on Wednesday 20 October 2021 (5pm – 6:30pm) to launch the publication, and you can register here.

Discriminatory Torture of an LGBTI Person: Landmark Precedent Set by the Inter-American Court

Photo by Harry Quan

Professor Clara Sandoval (University of Essex), Chris Esdaile (REDRESS) and Alejandra Vicente (REDRESS)

Trigger warning: this report contains a description of sexual violence.

In the midst of the coronavirus crisis, the Inter-American Court of Human Rights (IACtHR) has issued a landmark judgment in the case of Azul Rojas Marín and Another v. Peru, enhancing the rights of LGBTI persons, and setting new standards with the potential to reduce the levels of violence suffered by this group both within and beyond the Americas. Through this case the IACtHR has developed the concept of “violence motivated by prejudice”; it concluded that discrimination based on sexual orientation can lead to arbitrary detentions of LGBTI people; it has developed its understanding of discriminatory torture; and it has set specific due diligence standards to ensure the effective investigation of these cases. The Court has ordered Peru to provide reparations to Azul including the implementation of important guarantees of non-repetition.

The case of Azul is not an isolated decision to protect LGBTI rights in the Inter-American System. Both the Inter-American Commission (IACHR) and IACtHR have been at the forefront of the protection of LGBTI rights, as illustrated by the Court’s controversial but significant Advisory Opinion 24/17 on Gender identity, and equality and non-discrimination with regard to same-sex couples, and cases such as Atala Riffo and daughters v. Chile and Duque v. Colombia. However, the Azul case goes a step further and complements other key European Court of Human Rights (ECtHR) cases such as M.C and A.C v. Romania and Identoba and others v. Georgia where the ECtHR found violations of the prohibition of torture and inhuman or degrading treatment and discrimination in relation to applicants who participated in peaceful LGBTI demonstrations, considering the States’ failure to protect demonstrators from homophobic violence and the lack of effective investigations.

What happened to Azul?

Azul Rojas Marín is a transgender woman, who at the time of the events self-identified as a gay man. She was detained late at night on 25 February 2008 by members of the Peruvian police when she was walking home. Some of the officers knew who Azul was. They insulted her and made derogatory remarks about her sexual orientation. She was forcibly taken to a police station and kept there for almost six hours, although her detention was not officially registered. During her detention, Azul was stripped naked, beaten repeatedly, and anally raped with a police baton. The insults and derogatory remarks about her sexual orientation continued throughout. She was released early the next day.

Azul reported the crime to the authorities, but they did not believe her and did not investigate properly. Different members of the justice system revictimized Azul. During the reconstruction of the crime scene, Azul was forced to face her perpetrators while they made fun of her. The prosecutor was present during her medical examination, without Azul’s consent, and kept making comments to influence the findings of the doctor. Azul’s complaint was eventually dismissed. To date, no one has been held to account or punished for what happened.

The litigation of the case

In this context REDRESS, the Coordinadora Nacional de Derechos Humanos (CNDH) and Promsex, joined efforts and filed a complaint before the IACHR in April 2009. Peru challenged the admissibility of the case, and presented various arguments to the Court on the merits.

The case was decided on the merits through the IACHR’s report 24/18. Given that Peru did not comply with the recommendations made by the IACHR, the case was referred to the Court in August 2018. The Commission noted this would be the first case before the IACtHR dealing with violence against LGBTI persons. The Court held a hearing in August 2019, and decided the case in March 2020, making significant findings of facts and law.

The arbitrary detention of LGBTI persons can be inferred when there are signs of discrimination and no other apparent reason for the detention

Peru argued that the detention of Azul took place in order to carry out an identity check as she did not have her ID with her (124). Peru disputed the length of the detention. However, the Court found that the detention was not carried out in accordance with domestic law, that one of the officers who detained Azul knew who she was, and that derogatory comments about her sexual orientation were made. The Court, following the views of the UN Working Group on arbitrary detention and those of the expert Maria Mercedes Gómez, considered that the lack of a legal basis for Azul’s detention and the existence of discriminatory elements together inferred that she was detained based on her sexual orientation (128), which automatically rendered the arrest arbitrary. The development of this standard could be crucial to combat arbitrary arrests of LGBTI people around the world for reasons based on a person’s sexual orientation or gender identity, including in the context of COVID-19.

The purposive element of the definition of torture incorporates discrimination based on sexual orientation and gender identity

Peru alleged that it was not proven that sexual violence took place, because the domestic courts were unable to establish it due to the lack of direct evidence of the crime (138 and pleadings before the IACHR). It also argued that torture did not take place because two elements of the crime were missing: the intent and the purpose.

The IACtHR concluded Azul was anally raped while in detention. In contrast to the domestic courts’ approach, the IACtHR reached this conclusion by assessing various pieces of evidence, including Azul’s statements, medical examinations and the forensic analysis of the clothes she wore at the time of the events (157). The IACtHR considered that what happened amounted to torture as the intentionality, severity and purposive elements were met. Further, the Court expanded the list of specific purposes by which sexual violence can constitute torture, to include the motive of discrimination based on the sexual orientation or gender identity of the victim. Following the expert opinions of Juan Méndez and Maria Mercedes Gómez, the Court found that sexual violence that involves anal rape, especially when carried out with a tool of authority such as a police baton, all while derogatory remarks were made, shows that the specific motive of the crime was to discriminate against Azul (163).

The Court went further to label it as a hate crime given that it was the result of prejudice (165), and stated that the crime not only breached Azul’s rights but also the freedom and dignity of the whole LGBTI community (165). This finding constitutes a major development under international law as this is the first case decided by an international tribunal to conclude that torture can take place with the specific purpose of discriminating against a person because of sexual orientation or gender identity.

States have a duty to investigate violence motivated by discrimination against members of the LGBTI community

Peru argued that as soon as it learned about Azul’s allegations, it opened an investigation that was carried out with due diligence (172), although this was disputed by Azul’s legal representatives. Given the prevailing levels of impunity for such crimes in the Americas the IACtHR made a careful assessment of the facts in this regard.

The IACtHR reiterated its case law regarding due diligence in cases of sexual violence, but extended their application to violence against LGBTI persons, adding new dimensions to its existing standards. Notably, the Court found that when investigating violence States have a duty to take all necessary steps to clarify if it was motivated by prejudice and discrimination (196). The Court said that this implies that the State should collect all the required evidence, provide full reasons for its decisions and decide in an impartial and objective manner. The authorities should not ignore any facts that could establish that the violence was motivated by discrimination (196). In the case of Azul, the authorities never considered discrimination and did not pursue this line of investigation. This finding by the Court demonstrates its ongoing dialogue with the ECtHR, as it took note of Identoba (67) (which set a similar precedent but in relation to ill-treatment). However, in contrast to the ECtHR, the IACtHR does not make any reference to the difficulty of the task or the fact that it is, in the views of the ECtHR, “an obligation of best endeavours, and is not absolute”.

The Court also noted that investigations should avoid the use of stereotypes. In this case, local prosecutors undermined the declaration of Azul by stating, “but if you are gay, how am I going to believe you?” (200), and by inquiring about her past sex-life. The Court noted that such stereotypical lines of inquiry should not be used in cases of sexual violence, including when that violence is committed against members of the LGBTI community (202). This is another important contribution of the Court to the protection of LGBTI people under international law, which does not exist under ECHR jurisprudence.

The IACtHR tackles structural discrimination through reparations

The IACtHR ordered very holistic forms of reparation for both individual as well as societal harm. From an individual perspective, the Court recognised Azul and her mother as victims in the case and awarded them compensation for pecuniary and non-pecuniary damage. The Court also ordered that there should be a public ceremony, where senior government figures recognise the State’s international responsibility (232-234). It also required the State to provide rehabilitation to Azul for physical and psychological harm, including access to medicines and transport expenses necessary to undergo treatment (236).

But what is most remarkable about this judgment, and which Peru challenged during the litigation, are the measures requested by Azul and awarded by the Court to address structural discrimination as a cause of hate crimes. The Court ordered Peru to adopt a protocol for the effective criminal investigation of violence against members of the LGBTI community. The protocol shall be binding under domestic law, instruct State representatives to abstain from applying stereotypes (242), and include due diligence standards developed by the Court in the judgement (243). The Court instructed the State to provide training to members of the justice system and the police on LGBTI rights and due diligence investigations. Additionally, Peru must implement a data collection system to officially register all cases of violence against members of the LGBTI community, including disaggregated information (252).

Finally, the Court ordered Peru to eliminate from its local/regional security plans the reference to ‘eliminate homosexuals and transvestites’ since this exacerbates discrimination against members of the LGBTI community (255).

So far Peru has not commented publicly on the judgment, and it is expected that it will act in good faith and implement the judgment in full.  


The case of Azul Rojas Marin enhances the protection of LGBTI persons from violence and discrimination.

This decision is also a wake-up call for States, at a time when some governments in the region, including Peru and Panama, are responding to COVID-19 by adopting a gender-based alternating lock-down schedule restricting essential business such as grocery shopping. These new measures take into account only the sex that appears in identity documents, and such a simplistic method has generated a negative reaction from the LGBTI community. Hopefully, the Inter-American decision in Azul’s case will remind authorities that even emergency responses should not lead to discrimination, especially when the particular vulnerabilities of the LGBTI community require a more sensitive approach.

The authors of this blog have been representing Azul in the litigation before the Inter-American System on behalf of REDRESS.

This piece was first published on the Blog of the European Journal of International Law and is reproduced here with permission and thanks.

Judging Inter-American Human Rights

Photo by Artem Beliaikin

Dr Patricia Palacios Zuloaga, Lecturer in International Human Rights Law at the University of Essex, published a new paper titled ‘Inter-American Human Rights: The Riddle of Compliance with the Inter-American Court of Human Rights’.

The article argues that the use of compliance studies to evaluate the effectiveness of international human rights courts can produce misleading results because a focus on compliance considers the behaviour of only one stakeholder in the dynamic that is human rights adjudication: the state.

A survey of petitioners in cases before the Inter-American Court of Human Rights (‘the Inter-American Court’), together with a review of literature surrounding strategic litigation before the Inter-American System, demonstrate how civil society organisations value the declarative justice provided by the Court, how they mobilise around human rights litigation and how adept they are at deploying rulings in such a way as to produce impact beyond compliance and even in the absence of any compliance at all.

The article is published in Volume 42, Issue 2 (pp. 392-433) of the Human Rights Quarterly, a journal which is widely recognised as the leader in the field of human rights.

Essex Lawyer Plays Part in Landmark Legal Judgment in Latin America

Photo by Jose Pablo Garcia

An Essex lawyer has helped win a landmark judgment at the Inter-American Court of Human Rights, supporting the human rights of LGBTI people across the continent.

Trigger warning: this report contains a description of sexual violence.

Professor Clara Sandoval, from the School of Law and Human Rights Centre, has been litigating for over ten years on behalf of Azul Rojas Marín, a transgender woman, who was beaten, stripped naked and subjected to torture and rape by Peruvian police in February 2008.

Rojas Marín (who at that time self-identified as a gay man and now self-identifies as a woman) was arrested arbitrarily. Throughout the process, the police officers made derogatory remarks about her sexual orientation.

On 6 April, The Inter-American Court of Human Rights (IACtHR), the ultimate authority on human rights in the Americas, found Peru responsible for torture and sexual violence against an LGBTI person. It is the first time in its history that the IACtHR has considered a case of discriminatory torture.

The Court found Peru responsible for the violation of a range of rights in relation to Rojas Marín, in breach of its obligations to respect and ensure those rights without discrimination. Peru was also found responsible for the violation of the right to personal integrity of Rojas Marín’s mother, who died in 2017. 

On learning of the ruling, Azul Rojas Marín said:

I am very grateful to all the people who have made this possible. I have no words to describe how I feel. I thank God above all. After all that I have been through, finally a court believes me. I only wish I could have been able to share this joy with my mother, who was always alongside me in my efforts to report the crime and find justice.

In its ruling, the IACtHR determined that the State of Peru did not act with due diligence in its investigation of the sexual torture of Rojas Marín and its violation of the rights to judicial guarantees and judicial protection. The Court found that the process was riddled with discriminatory stereotypes and the Peruvian authorities should have investigated whether there were reasonable indications that the violence had been motivated by discrimination.

The Court ordered Peru to adopt a series of measures to redress the damage to Azul Rojas Marín and prevent these crimes from being repeated. They reaffirmed that a person’s sexual orientation, gender identity or gender expression are categories protected by the Inter-American Convention on Human Rights.

Professor Sandoval, whose recent work includes focusing on reparations for gender-based violence, said:

This is a landmark judgment where the Court develops, for the first time, the concept of torture as a result of discrimination because of sexual orientation, and where the tribunal tries to address some of the structural causes of these violations, including discrimination, by ordering Peru to implement significant reparation measures to prevent recurrence of the violations. This judgment paves the way in fundamental ways for the future protection of members of the LGBTI community in the Americas and around the world.

Rojas Marín brought her case before the Inter-American System of Human Rights with the legal assistance of the Center for the Promotion and Defense of Sexual and Reproductive Rights (Promsex), the National Coordinator of Human Rights (CNDDHH) and REDRESS, an international organisation that fights against torture. Professor Sandoval has been part of the REDRESS team litigating the case.

Jorge Bracamonte, Executive Secretary of the CNDDHH, said:

This ruling represents a historic opportunity for the Peruvian State to eradicate systematic violence against LGTBI people from its institutional practices and is a precedent of great importance for the protection of LGTBI people throughout the region.

This post first appeared on the website of the University of Essex and is reproduced here with permission and thanks.