September 7, 2022
edition: Ana Fornaro
The Argentine state acknowledged its responsibility for the lack of adaptation to international standards in the investigation of the crime of Prefect Octavio Romero committed eleven years ago. For the first time in the history of Argentina and the Inter-American Commission on Human Rights, an amicable agreement was reached regarding a hate crime.
The agreement was signed today at the Puiggrós Hall of the National Archives of Memory in the city of Buenos Aires and was attended by Gabriel Gersbach, Romero’s claimant and partner at the time. At the time of his murder, they were about to be married. Also present were Andrea Pochak, Under Secretary for Defense and International Human Rights Liaison; Pedro Paradiso Sotile, President of the Equality Foundation; Celeste Fernandez, Deputy Director of the Civil Association for Equality and Justice (ACIJ); and Victor Madrigal-Borloz, UN independent expert on protection against violence and discrimination based on sexual orientation or gender identity.
“This will set a precedent so that this never happens again.” To try to prevent this from happening again. That there is no more Octavio Romero, no more cases of discrimination,” Gabriel said at the signing of the agreement. It opens doors and soothes a long-standing pain,” Gabriel said on the spot. During the act, he was dressed in clothes that belonged to Octavio.
Fueled by Gabriel and LGBT+ activism, the Inter-American Commission on Human Rights (IACHR) took up the case in 2018.
“The Argentine state acknowledges its international responsibility for the lack of adaptation of the criminal investigation to international standards, especially the enhanced due diligence that is applied to issues of gender-based violence applicable to crimes against the LGBTIQ+ community,” the report states. . He also acknowledged that “the lack of an adequate judicial response had a serious impact on the personal integrity of Gabriel Gersbach, Octavio Romero’s partner and cohabitant.”
Harassment and hate crimes
One year after the passage of the Marriage Equality Act (No. 26,618), Octavio and Gabriel would be the first same-sex marriage in the armed forces. To do this, the non-commissioned officer of the Argentine Naval Prefecture, who was then 33 years old, had to inform his superiors about the marriage, as it was a mandatory request at the time. Since then, he began to receive harassment in his work environment and seven months before the wedding, he disappeared.
“In twelve years of relationship it had never happened to me, we were ass and panties. A little message all the time, we were very good friends,” Gabrielle told Presentes about the moment she didn’t hear from her boyfriend. In his absence, he files a complaint with Police Station No. 15. After testifying twice, two of Octavio’s superiors appear. One of them offered him his card and said, “I’m available for anything.”
On June 17, 2011, six days after his disappearance, a boatman discovered his body on the banks of the Rio de la Plata and its intersection with Boulevard San Martín., in the Vicente Lopez area of Buenos Aires. This place was under the jurisdiction of the Argentine Naval Prefecture. He was naked, beaten and with 2.06 grams of alcohol in his blood.
The court case
LGBT+ organizations claim that this is a hate crime and that the case (No. 65761/11) has been “on hold” for many years. After 11 years of the crime, the judiciary has made no progress in the investigation. The case was conducted by the National Court of 1. Instance in Criminal Investigation No. 24, then in charge of Judge Juan Ramos Padilla. Currently, the Criminal Prosecutor for Investigation No. 40 of the City of Buenos Aires is investigating the case as “NN (“no name”, i.e., unknown perpetrator) for murder.”
“The case never progressed through the court system. The point of view of diversity and human rights was not considered, nor was the fact that this was a hate crime. That is why we decided to approach the IACHR. Access to justice for the LGBT community is always difficult”, lawyer and LGBT activist Pedro Paradiso Sotile told Presentes. From the Equality Foundation – which he chairs – and together with the Civil Society for Equality and Justice (ACIJ), they are representing Gabriel in the litigation.
evidence and journalism
In 2015, a key event occurred for the investigation of the case. Journalist Franco Torchia received a report detailing the sequence of events that led to Octavio’s crime. In its pages, it details that the prefect was kidnapped and tortured by a group of members of the National Naval Prefecture to prevent a marriage between members of the force. Also, that the operation was recorded on a hard drive in the Coast Guard building.
“It was a very strong anonymous report detailing what happened to Octavio’s body and why he was killed the way he was. I quickly gave it to Gabi so she could take it to the prosecutor’s office,” Torchia told Presentes. For years he covered the case in his radio program “No se puede vive del amor”. However, he clarified that “it meant the same as nothing”.
The prosecution and the complaint requested that a search be conducted to locate the hard drive. However, the judge in the case, Juan Ramos Padilla, denied the request on the grounds that the report “lacked credibility.” Accordingly, two appeals were filed against this decision, which were also dismissed. Finally, on November 10, 2015, the Criminal and Criminal Appeals Chamber granted the request. The attack took place two months later. The device was not found and by this time Octavio’s superiors had been suspended or retired.
For years, the case received minimal media coverage. “It was well known at the time: right after Octavio disappeared, until his body was found murdered in Costanera Norte. Then, as the months went by, it disappeared from the media, as it usually does,” Torchia said.
Last year marked 10 years since the crime and the media came out with various reports. “How did I see these reports? The Bad Too sweet, too processed of the love story, cowardly in many cases. Here we have to talk directly about the impunity of the state”, added the journalist.
The Journey in International Justice
In 2012 Gersbach presented the case to the IACHR and in 2018 it was accepted. At the time, the agency issued a report stating that the case met the Commission’s requirements to assess whether Argentina had violated specific human rights. From 2021, meetings are held between the nation state and Gabriel Gersbach together with their representatives. These exchanges culminated in the signing of the Friendly Settlement Agreement.
“This moment seems incredible to us: to have the right to be happy, to feel happiness. The terrible thing that causes the impunity, the complicit silence, the lack of access to justice is that it makes it difficult to feel good in the face of an event that is historic,” Paradiso Sottile said.
In addition to acknowledging the responsibility of the Argentine state for the failure to investigate the case, the agreement detailed a number of commitments. The Rapporteur on the Rights of Lesbian, Gay, Bisexual, Transgender, and Intersex Persons at the Inter-American Commission on Human Rights is responsible for monitoring, controlling, and tracking commitments. For this purpose, the state will prepare six-monthly reports on the degree of compliance with the measures.
The commitments undertaken by the state
– The state must disseminate the agreement within a maximum of 6 months from its publication in the State Gazette. This will be done on the websites of the National Secretariat for Human Rights and the National Institute against Discrimination, Xenophobia and Racism (INADI). Also in a newspaper with a wide national circulation.
– He also promised to provide “all the support that may be required by the prosecution involved in the investigation of the facts related to the death of Octavio Romero.”
– A special documentary film will be produced through the educational and cultural channel “Encuentro”. It will be about sexual diversity in the security forces, in memory and honor of Octavio. It will be available on the Cont.ar platform and distributed to schools.
– The state will support the construction of a mural in Romero’s memory.
– The Department of Homeland Security will dictate a “Protocol for Action Against Complaints of Discrimination Based on Sexual Orientation and/or Gender Identity, Its Expression and Sexual Characterization”. It will also promote an annual awareness day for cadets and candidates who wish to join the federal security forces. He pledged to work to include a gender perspective and sexual diversity in the training of teachers and instructors at police training centers.
– The nation’s Ministry of Women, Gender and Diversity will take action to ensure access to justice for LGBTIQ+ people in situations of gender-based violence. These include the expansion of professionals from the Advocates’ Body for Victims of Gender-Based Violence and the Bringing Rights Programme. He also pledged to work on preparing general guidelines to deal with transvesticide, transfemicide, transmurder and prejudice or discrimination based on sexual orientation, expression or gender identity.
– The Prosecutor’s Office, through UFEM, will carry out a work process to adapt its “Protocol for the Investigation and Litigation of Cases of Violent Death of Women (Femicides)”. The aim is to include a diversity perspective and crimes due to prejudice or discrimination based on sexual orientation, expression or gender identity.
– The parties agreed to establish an arbitral tribunal ad hoc to determine the reparations that correspond to Gabriel Gersbach “for the pecuniary and non-pecuniary damages suffered due to the violations of human rights recognized in this agreement.”