29
the Inter-American Commission did not file any allegations in that respect. It it is
now well established by the Court that the representatives may argue violations of
the Convention other than those alleged by the Commission, as long as such legal
arguments are based upon the facts set out in the application.25 Petitioners are the
persons entitled to the rights protected by the Convention; therefore, restricting
their possibility to submit their own allegations of fact would amount to an undue
restriction of their right to justice which derives from their legal standing as
Subjects of International Human Rights Law.26
54.
The Court considers that, in the light of the general obligation of the State
Parties to respect and guarantee the rights of all persons subject to its jurisdiction,
contained in Article 1(1) of the American Convention, the State has the obligation to
commence immediately an effective investigation that may allow the identification,
the trial and the punishment of those liable, whenever there is an accusation or
well-grounded reason to believe that an act of torture has been committed in
violation of Article 5 of the American Convention. Furthermore, this action is
specifically regulated in Articles 1, 6 and 8 of the Inter-American Convention against
Torture, which Articles bind the State Parties to take all steps that may be effective
to prevent and punish all acts of torture within the scope of their jurisdiction, as well
as to guarantee that all torture cases be examined impartially.27 In the instant case,
the Court finds that Colombia did not abide by these provisions, since, to this date,
no person has been punished for the tortures inflicted on Mr. Wilson Gutiérrez-Soler
and the State itself has recognized the existence of shortcomings in judicial
guarantees of due process of law its internal proceedings (supra paras. 26, 28 and
48(10)). From the moment the said Inter-American Convention against Torture
became effective in Colombia on February 18, 1999, the State is bound to comply
with the obligations set forth in such treaty. Therefore, in the opinion of this Court,
such conduct is considered a failure to comply with the obligations stated in Articles
1, 6 and 8 of the Inter-American Convention against Torture, as regards the duty to
prevent and punish torture domestically.
55.
On the other hand, the representatives further alleged that the State violated
the right to humane treatment, set forth in Article 5 of the American Convention, to
the detriment of Mr. Wilson Gutiérrez-Soler’s next of kin; the Commission did not
submit any allegations in that respect.
guarantee that any person making an accusation of having been subjected to torture within their
jurisdiction shall have the right to an impartial examination of his case. Likewise, if there is an accusation
or well-grounded reason to believe that an act of torture has been committed within their jurisdiction, the
States Parties shall guarantee that their respective authorities will proceed properly and immediately to
conduct an investigation into the case and to initiate, whenever appropriate, the corresponding criminal
process. After all the domestic legal procedures of the respective State and the corresponding appeals
have been exhausted, the case may be submitted to the international fora whose competence has been
recognized by that State.”
25
Cf. Case of YATAMA, supra note 3, para. 183; Case of Fermín Ramírez, supra note 3, para. 88;
and Case of the Moiwana Community, supra note 9, para. 91.
26
Cf. Case of the Moiwana Community, supra note 9, para. 91; Case of De La Cruz Flores.
Judgment of November 18, 2004. Series C No. 115, para. 122; and Case of the “Juvenile Reeducation
Institute”, supra note 8, para. 125.
27
Cf. Case of Tibi. Judgment of September 7, 2004. Series C No. 114, para. 159; Case of the
Gómez Paquiyauri Brothers. Judgment of July 8, 2004. Series C No. 110, para. 114; and Case of Maritza
Urrutia. Judgment of November 27, 2003. Series C No. 103, para. 95.
اختر الفقرة المستهدفة3
الاتصال بفقرة
Connect to an entity
Disable highlights
أضف إلى جدول المحتويات