linked to the physical damage stemming from the torture to which they were
allegedly subjected. 174
2. Obligation to investigate alleged acts of torture
126.
The Court has pointed out that, according to Article 1(1) of the American
Convention, the obligation to guarantee the rights enshrined in Articles 5(1) and
5(2) of the American Convention embodies the duty of the State to investigate
possible acts of torture and other cruel, inhuman or degrading treatment. 175 The
duty to investigate is reinforced through the provisions of Articles 1, 6, and 8 of the
Convention against Torture, 176 which establish that the State is required to “take
[…] effective measures to prevent and punish torture within its jurisdiction,” and
“prevent and punish […] other cruel, inhuman, or degrading treatment or
punishment.” In addition, according to the provisions of Article 8 of that
Convention, States Parties shall 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 [and]
[i]f there is an accusation or well-grounded reason to believe that an act of torture has
been committed within their jurisdiction, […] 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.
174
Cf. Expert opinion rendered by expert witness Ana Deutsch by affidavit on August 8, 2010
(Merits file, volume III, pages 1295 to 1304). Regarding this expert opinion, the State pointed out that
"[t]he analysis of this expert witness does not describe nor provide grounds for the criteria mentioned in
Annex 4 of the Istanbul Protocol.” It added that “[t]he expert opinion does not contain a description and
basic information regarding the previous personality of the patients, since it does not consider whether
some factors of that personality have a bearing on or determine or, if applicable, change the symptoms
described.” The State argued that the foregoing suggests that this expert opinion "is not objective since
it uses and refers to different evaluative or personal opinions and expressions, which describe only
elements that are of interest to the petitioner; thus, the objectivity is substantially diminished and
therefore, so it is the reliability of the investigation presented.”
175
Cf. Case of Ximenes Lopez v. Brazil, Merits, Reparations and Costs. Judgment of July 4, 2006.
Series C Nº. 149, para. 147; and Case of Bayarri v. Argentina, supra note 123, para. 88; Case of
González et al. (“Cotton Field”) v. Mexico, supra note 48, para. 246.
176
Article 1 of the Inter-American Convention to Prevent and Punish Torture provides that:
The State Parties undertake to prevent and punish torture in accordance with the terms of this
Convention.
Furthermore, Article 6 provides that:
In accordance with the terms of Article 1, the States Parties shall take effective measures to
prevent and punish torture within their jurisdiction.
The States Parties shall ensure that all acts of torture and attempts to commit torture are
offenses under their criminal law and shall make such acts punishable by severe penalties that
take into account their serious nature.
The States Parties likewise shall take effective measures to prevent and punish other cruel,
inhuman, or degrading treatment or punishment within their jurisdiction.
Moreover, Article 8 provides that:
The States Parties shall 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 courts whose
competence has been recognized by that State.
48
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