the State must provide a satisfactory and convincing explanation for that situation. 490 Consequently,
a presumption exists that the State is responsible for the injuries revealed by a persons who has
been in the custody of State agents. 491 In this situation, the State has the obligation to provide a
satisfactory and convincing explanation of what happened and to disprove the allegations of its
responsibility, using adequate probative elements. 492
344. On other occasions, this Court has stipulated the guiding principles that must be observed in
criminal investigations into human rights violations. 493 In cases of violence against women, certain
international instruments are useful for clarifying and giving content to the enhanced State
obligation to investigate such cases with due diligence. 494 Among other matters, a criminal
investigation into sexual violence requires that: (i) the victim’s statement is taken in a safe and
comfortable location, that provides privacy and confidence: (ii) the victim’s statement is recorded in
such a way as to avoid or limit the need to repeat it; (iii) the victim is provided with medical,
psychological and health care, on an emergency basis and continuously if this is required, by a
treatment protocol designed to reduce the consequences of the rape; (iv) a complete medical and
psychological examination is performed immediately by appropriate trained personnel, of the sex
indicated by the victim, insofar as possible, informing her that she may be accompanied by a person
of her confidence if she so wishes; (v) the investigative actions are documented and coordinated
and the evidence is handled diligently, taking sufficient samples, conducting tests to determine the
possible authorship of the act, securing other evidence such as the victim’s clothes, investigating
promptly the site of the facts, and ensuring the proper chain of custody, and (vi) access to free
legal assistance is provided to the victim during all stages of the proceedings.
345. In the instant case, the presumed victim gave an account of the alleged ill-treatment for the
first time on April 21, 1992, in her initial statement before the State authorities, which, in this case,
were the Police themselves. Subsequently, she again mentioned these facts in her preliminary
statement (supra paras. 82, 83 and 322). The Court underscores that, due to the above
considerations, the awareness of the alleged ill-treatment suffered by Ms. J., gave rise to the State’s
obligation to open an investigation into the facts ex officio. Nevertheless, according to the State
itself, it has not yet undertaken any investigation. The State presented diverse justifications for why
it had not opened an investigation and the Court will now examine them.
346. The State’s first justification was that the statements made by Ms. J. were “fairly general,”
so that the domestic authorities had not identified “a specific situation that was contrary [to the
right to personal integrity] and that could be identified as an act of torture in order to conduct an
investigation (supra para. 301). The State also indicated, as a second justification, that, at the time
of the events, it had no international obligation to investigate alleged “inappropriate touching,” and
that a mention of alleged “inappropriate touching” did not constitute “a reasonable indication that
490
Cf. Case of Juan Humberto Sánchez v. Honduras, supra, para. 100, and Case of Mendoza et al. v. Argentina, supra,
para. 203.
491
Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits, supra, paras. 95 and 170, and Case of
Mendoza et al. v. Argentina, supra, para. 203.
492
Cf. Case of Juan Humberto Sánchez v. Honduras, supra, para. 111, and Case of Mendoza et al. v. Argentina, supra,
para. 203.
493
These may include, inter alia: collection and preservation of probative elements in order to assist in any potential
criminal investigation of those responsible; identification of possible witnesses and obtaining their statements, and determination
of the cause, manner, place and time of the act investigated. In addition, an exhaustive investigation of the scene of the crime
must be conducted ensuring that thorough analyses are performed by competent professionals, using the most appropriate
procedures. Cf. Case of Juan Humberto Sánchez v. Honduras, supra, para. 128, and Case of Rosendo Cantú et al. v. Mexico,
supra, para. 178.
494
Cf. Case of Fernández Ortega et al. v. Mexico, supra, para. 194, and Case of Rosendo Cantú et al. v. Mexico, supra,
para. 178. Istanbul Protocol, paras. 67, 77, 89, 99, 101 to 105, 154, 161 a 163, 170, 171, 224, 225, 260, 269 and 290, and
World Health Organizations, Guidelines for medico-legal care for victims of sexual violence, Geneva, 2003, inter alia, pp. 17, 30,
31, 34, 39 to 44 and 57 to 74.
102
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