Messrs. Cabrera and Montiel, the domestic courts examined both the medical
certificates and the expert opinions in order to assess the allegations of torture, the
Court fins that this proceeding had a purpose other than to investigate the alleged
perpetrators of these allegations since, at the same time, Messrs. Cabrera and
Montiel were being tried. Therefore, the fact that no independent investigation
against the alleged perpetrators was conducted by the ordinary courts prevented
any attempt to dispel or clarify the allegations of torture. Based on the foregoing, it
is clear to this Court that the State failed in its duty to investigate ex officio the
human rights violations committed against Messrs. Cabrera and Montiel. In the
instant case, it was essential that the different domestic courts order new
procedures to investigate the link between the signs found on the victims’ bodies
and the acts allegedly suffered as torture.
132. The Court also considers that this obligation to investigate the alleged acts of
torture was even more crucial bearing in mind the prior context of the instant case,
as regards the confessions and statements made under duress and the duty of
strict due diligence that should apply in areas with a heavy military presence (supra
paras. 86 to 89). In this respect, the United Nations Special Rapporteur on Torture
has pointed out that “generally speaking, not only judges but also lawyers, the
Public Prosecutor's Office and the judicial police itself are overwhelmed with work,
which may result in a tendency to rely on confessions as a way of resolving cases
rapidly.” 197 Moreover, the United Nations Special Rapporteur held that “[…] in
normal practice, there is broad discretion in the application of the law and therefore
there is a great risk that investigations may be falsified, carried out under duress or
recorded illegally, ignoring potentially key evidence or considering other less
important evidence that might slant the investigation in such a way as to affect or
benefit someone; evidence may even be made intentionally to "disappear.” 198
3. Legal classification
133. The Court has indicated that the violation of person’s right to physical and
psychological integrity is a category of violation that has several gradations. It
encompasses actions ranging from torture to other types of humiliation or cruel,
inhuman or degrading treatment, with physical and psychological effects that vary
in intensity depending on endogenous and exogenous factors (such as, inter alia,
length of the mistreatment, age, sex, health, context and vulnerability, etc.), which
must be proven in each specific situation. The Court has also specified that any use
of force that is not strictly necessary to ensure proper behavior on the part of the
detainee constitutes an assault on human dignity, in violation of Article 5 of the
American Convention. 199
134. In this case, the lack of an investigation against the alleged perpetrators of
the violation of the right to humane treatment [personal integrity] limits the
possibility of reaching a conclusion on the allegations of alleged torture committed
against Messrs. Montiel and Cabrera. Nevertheless, despite the foregoing, the Court
has indicated that, as guarantor of the rights enshrined in the Convention, the
State is responsible for ensuring the right to humane treatment of every person
197
United Nations. Economic and Social Council. Report of the Special Rapporteur on Torture, Sir
Nigel Rodley. Visit to Mexico UN Doc (E/CNA/1998/38/Add.2), January 14, 1998, para. 43.
198
United Nations. Economic and Social Council. Report of the Special Rapporteur on Torture,
supra note 197, para. 64.
199
Cf. Case of Loayza Tamayo v. Peru, supra note 37, para. 57; Case of Miguel Castro-Castro
Prison v. Peru. Interpretation of the Judgment on the Merits, Reparations and Costs. Judgment of
August 2, 2008. Series C N° 181; para. 76.
52
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