1 CONCURRING OPINION OF JUDGE CECILIA MEDINA QUIROGA IN RELATION TO THE JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS IN THE CASE OF GONZÁLEZ ET AL. (“COTTON FIELD”) V. MEXICO OF NOVEMBER 16, 2009 1. Although I agree with the decision of the Inter-American Court of Human Rights (hereinafter “the Court,” or “the Tribunal”) in this case that there has been a violation of Article 5(2) of the American Convention on Human Rights (hereinafter the “American Convention” or “Convention”), I disagree with the fact that the Court has not classified the acts perpetrated against the victims as torture. 2. From a practical and juridical perspective, whether or not a conduct is classified as torture does not make much difference. Both torture and cruel, inhuman or degrading treatment are violations of a human right and all these acts are regulated in almost the same way. Despite this, in other cases, the Court has not hesitated to classify a conduct as torture, often without mentioning the reasons why, and it can be observed that the principal factor is the severity of the act and how it affects the victim. In general, it is the conduct that determines the distinction between torture and other types of cruel, inhuman or degrading treatment. An act is classified as torture because a greater stigma is assigned to torture than to other acts that are also incompatible with Article 5(2) of the Convention. 3. The Tribunal decided to explain the requirements for declaring that torture has been committed in Bueno Alves v. Argentina, understanding that an act constitutes torture when the ill-treatment: (a) is intentional; (b) causes severe physical or mental suffering, and (c) is committed with a specific goal or purpose. 1 If we examine these three elements, we can see that the first and third may be found in other types of treatment that are incompatible with Article 5(2) of the Convention. The intention refers to the fact that the individual is aware that he is executing an act that will cause suffering or a feeling of humiliation, and the purpose refers to the reasons why he executes it: such as, domination, discrimination, sadism, or to achieve an act or omission by the victim. Both elements may also exist in cruel, inhuman or degrading types of treatment. Consequently, what really distinguishes torture from other types of treatment, in the terms stated by the Court in the case of Bueno Alves, is the severity of the physical or mental suffering. 4. The European Court of Human Rights (hereinafter “European Court”) adopted precisely that position. In this regard, in Ireland v. the United Kingdom, it decided that torture referred to “inhuman treatment causing very serious and cruel suffering.”2 5. General Comment 20 to Article 7 of the International Covenant on Civil and Political Rights (hereinafter “the Covenant”), of the Human Rights Committee,3 states that the distinctions between the different forms of treatment referred to in the Covenant “depend on the nature, purpose and severity of the treatment applied.”4 1 Cf. Case of Bueno Alves v. Argentina. Merits, Reparations and Costs. Judgment of May 11, 2007. Series C No.164, para. 79, and Bayarri v. Argentina. Preliminary Objection, Merits, Reparations and Costs. Judgment of October 30, 2008. Series C No. 187, para. 81. 2 Cf. European Court of Human Rights, Ireland v. the United Kingdom (Application no. 5310/71), Judgment Strasbourg, 18 January 1978, para. 167. 3 Cf. General Comment No. 20: Replaces general comment concerning prohibition of torture and cruel treatment or punishment (Art. 7): 10/03/92 CCPR General Comment No. 20. 4 Cf. General Comment No. 20, supra note 3, para. 4.

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