Medicine at the time of the facts is an indication that the “reluctance” of the women to be examined
by a male doctor, was not necessarily assuaged by the offer of a female doctor or the presence of a
woman during the examination, but rather it was considered an inconvenience that could prolong
the examination somewhat. The Court considers that this did not facilitate the creation of an
environment that would generate the trust of the detainees to denounce possible acts of torture or
sexual abuse, such as those described by the presumed victim. Therefore, the Court concludes that
the report of the medical examination does not reveal the causes of the injuries found, or that
during the examination Ms. J. was able to give her version of the events.
329. Furthermore, it must be pointed out that the absence of physical signs does not mean that
ill-treatment has not occurred, because these acts of violence against the individual often do not
leave permanent marks or scars. 460 The same is true in cases of sexual abuse and rape, in which
their occurrence will not necessarily be reflected in a medical examination, because not all cases of
sexual abuse and/or rape cause physical injuries or diseases that can be verified by a medical
examination. 461
330. Even though, in the instant case, the medical examination did not comply with the conditions
mentioned supra and some of the ill-treatment alleged would not leave physical traces, the Court
notes that the injuries found on J.’s legs and on the posterior thorax are consistent with her account
of the events, in the sense that her back had been injured by glass, and she had been forced to the
ground, and that a man had trod on her legs. Regarding the possibility that the said injuries had
been caused when Ms. J. presumably tried to escape from the building on Las Esmeraldas Street,
the Court notes that the use of force by the security forces should respect criteria of legitimacy,
necessity, suitability and proportionality. 462 The State merely indicated in general that J.’s injuries
had occurred when she tried to escape the arrest and it did not explain or present evidence as to
exactly how these injuries occurred. To the contrary, the State indicate that the use of force was
“legitimate,” because the security forces were dealing with “an unknown number of persons who
were presumably members of a terrorist organization, with the danger that this implied,” without
providing evidence that the persons who were being detained used any kind of force against the
police.
331. Furthermore, the evidence in the case file is unclear as to whether Ms. J. really tried to
escape by the back door of the building. On the one hand, the only document in the case file in this
regard is the police attestation, which indicates that when the police arrived at the building “the
occupants tried to escape by a back door, and were subsequently captured.” 463 On the other hand,
Ms. J. denies that she tried to escape and assures that “the door to Palermo [street] has a padlock
on the outside. 464 In this regard, the record of the inspection states that the entry “on Palermo
[street] was padlocked.” 465 Neither the record of the search of the building on Las Esmeraldas
where Ms. J. was arrested, nor the preventive detention order, the charges, or the prosecutor’s
report ordering the opening of the preliminary investigation, indicate that the presumed victim had
tried to escape. 466 Moreover, in her statement before the Court, the prosecutor of the Public
460
Cf. Istanbul Protocol, para. 161.
461
Cf. Case of Fernández Ortega et al. v. Mexico, supra, para. 124, and Case of the Río Negro Massacres v. Guatemala,
supra, para. 132. See also, ECHR, M.C. v. Bulgaria, no. 39272/98, § 166, ECHR 2003-XII.
462
Cf. Case of Montero Aranguren et al. (Retén de Catia) v. Venezuela. Preliminary objection, merits, reparations and
costs. Judgment of July 5, 2006. Series C No. 150, paras. 67 to 69, and Case of Fleury et al. v. Haiti, supra, para. 74.
463
Attestation No. 084–DINCOTE of April 25, 1992 (file of annexes to the answering brief, annex 23, folio 3349).
464
Preliminary statement of June 15, 1992, before the Tenth Investigating Court of Lima (file of annexes to the answering
brief, annex 42, folio 3704).
465
Inspection of August 11, 1992 (file of annexes to brief dated August 14, 2013, folio 5527).
466
Cf. Record of search of premises and seizure of property from the building on Las Esmeraldas Street (file of annexes to
the Merits Report, annex 28, folios 323 to 330); opening of the preliminary investigation of the Tenth Investigating Court of Lima
97
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