45
98.
The Court has already referred to “sham double jeopardy” resulting from a
first trial wherein there have been breaches of the due process of the law.44 In view
of the proven facts and of Colombia’s acknowledgement of liability, it is to be
inferred that the proceedings in the instant case before domestic courts were
vitiated by such shortcomings. Therefore, the State would not be entitled to claim
exemption of the obligation to investigate and punish on the grounds of the
judgments in proceedings that failed to meet the standards of the American
Convention, because judicial decisions originating in such internationally illegal
events cannot be the first step to double jeopardy.
99.
In this regard, the Court notices that in Colombia, it is possible to reopen
proceedings which have resulted in acquittals or in decisions to terminate
proceedings or to preclude investigation, such as those that kept the perpetrators in
the instant case unpunished. In this direction, the Court thinks highly of Colombia’s
willingness to to institute “the actions necessary for the competent entity to
commence the review proceedings of the final decisions pronounced in […] the
instant case,” and orders that Colombia shall proceed promptly to take the
measures necessary to institute such proceedings, which it must expedite within
reasonable time.
100. The aforementioned proceedings shall also be conducted in accordance with
international standards for documentation and for the construction of forensic
evidence proving the commission of torture acts, such as those set forth by Dr.
María Cristina Nunes de Mendonça’s Expert Reports submitted to the Court (supra
para. 42), and especially with those in the Manual on the Effective Investigation and
Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“the Istanbul Protocol”).45
b)
Medical and psychological treatment
101. After reviewing the Argument by the representatives, those of the
Commission aas well as the body of evidence in the instant case, it is inferred that
the psychological suffering by Mr. Wilson Gutiérrez-Soler and his next of kin,
derived from the violations, have lasted through to this day and impair their
respective life projects. On account of the foregoing, this Court, as it has done
before,46 is of the opinion that reparations must also include psychological and
psychiatric treatment for all the victims who wish to undergo it.
102. For the purpose of contributing to the reparation of such damage, the Court
orders that the State shall provide free of charge, at the health-care facilities the
State may indicate, the psychological and psychiatric treatment the following parties
may require: María Elena Soler de Gutiérrez, Ricardo Gutiérrez-Soler, Yaqueline
Reyes, Luisa Fernanda Gutiérrez-Reyes, Paula Camila Gutiérrez-Reyes, Leonardo
Gutiérrez-Rubiano, Leydi Caterin Gutiérrez-Peña, Sulma Tatiana Gutiérrez-Rubiano,
Ricardo Alberto Gutiérrez-Rubiano and Carlos Andrés Gutiérrez-Rubiano. Such
treatment shall include, among other things, the medication which may be needed.
44
Cf. Case of Carpio Nicolle et al., supra note 41, paras. 131 and 132.
45
Cf. U.N.O., United Nations High Commissioner for Human Rights, Geneva, 2001, available at:
www.unhchr.ch/pdf/8istprot.pdf.
46
Cf. Case of Huilca Tecse, supra note 43, para. 117; Case of the Serrano Cruz Sisters, supra note
7, paras. 197 and 198; and Case of Lori Berenson Mejía, supra note 7, para. 238.
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