21
is important that the prohibition against persons arrested being questioned
without a lawyer being present be rigourously applied. Medical examinations
established by the Colombian laws to be conducted upon entry into and
release from arrest centers must be carried out rigourously, avoiding relying
on good treatment certificates as a means of vouching that the person has
not been subjected to coercion or torture.
It is also essential that the decision in judgment C-358 of 1997 issued by the
Colombian Constitutional Court be fully enforced. Such judgment establishes
that “military or judicial criminal jurisdiction, which pursuant to the
Constitution shelters police and military authorities in criminal cases, cannot
be extended to cases involving human rights violations.” Even though as a
result of said judgment of the Constitutional Court “a considerable number of
[…] investigations of human rights violations have been removed from the
military criminal courts to the ordinary courts,” there are still opinions in
favor of these cases being heard by the military courts.
The expert witness held that it is necessary to prevent the victims from being
disparaged because of any kind of prejudice, including the prejudice that the
victim is a criminal, casting doubts on their testimony and giving credit to the
authorities eventually being investigated. In this regard, it is necessary to
give adequate instruction to the officials responsible for judicial and
disciplinary investigations, concerning the fact that, in cases of torture, the
victims cannot be treated as if they were criminals, and their testimony must
be taken into consideration.
C) EVIDENCE ASSESSMENT
Documentary Evidence Assessment
43.
In the instant case, as in others,6 the Court recognizes the evidentiary value
of the documents submitted by the parties at the appropriate procedural moment or
as evidence to facilitate the adjudication of the case pursuant to Article 45 of the
Rules of Procedure, which have not been disputed nor challenged, and whose
authenticity has not been questioned.
44.
The Court finds helpful for the adjudication of the instant case the copy of
“the entire record of the case instituted in the Military Criminal Courts against
Colonel Luis Gonzaga Enciso Baron, charged with criminal assault and battery
against Mr. Wilson Gutiérrez-Soler,” which has been forwarded by the State on
February 16, 2005 (supra para. 23), as it was not disputed or challenged, nor was
its authenticity or truthfulness questioned. The file is thus incorporated to the body
of evidence pursuant to Article 45.1 of the Rules of Procedure.7
6
Cf. Case of Acosta Calderón, supra note 3, para. 45; Case of YATAMA, supra note 3, para. 112;
and Case of Fermín Ramírez, supra note 3, para. 48.
7
Cf. Case of the Indigenous Community Yakye Axa. Judgment of June 17, 2005. Series C No.
125, para. 44; Case of the Serrano Cruz Sisters. Judgment of March 01, 2005. Series C No. 120, para.
41; and Case of Lori Berenson Mejía. Judgment of November 25, 2004. Series C No. 119, para. 81.
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