17
the agreements and instruments related to the treaty (paragraph 2 of Article 31 of the
Vienna Convention), but also the system of which it is part (paragraph 3 of Article 31 of said
Convention).”43 This concept is particularly relevant for International Human Rights Law,
which has shown substantial progress through the evolution in the interpretation of
international protection instruments.44
79.
Based on the foregoing, the Court understands that the elements of torture are as
follows: a) an intentional act; b) which causes severe physical or mental suffering, c)
committed with a given purpose or aim.45
80.
The Court will now analyze the facts of the instant case in view of the foregoing
considerations.
i)
Intentionality
81.
The evidence attached to the record of the case proves that the acts committed were
deliberately inflicted upon the victim and not the result of negligent conduct, an accident or
force majeure.
43
Cf. Case of the Ituango Massacres. Judgment of July 1, 2006. Series C No. 148, para. 156; Case of the
Indigenous Community Yakye Axa. Judgment of June 17, 2005. Series C No. 125, para. 126, and Case of Tibi.
Judgment of September 7, 2004. Series C No. 114, para. 144.
44
Cf. Case of Tibi, supra note 43, para. 144; Case of the Gómez-Paquiyauri brothers. Judgment of July 8,
2004. Series C No. 110, para. 165, and Case of the “Street Children” (Villagrán-Morales et al.). Judgment of
November 19, 1999. Series C No. 63, paras. 192 and 193.
45
The foregoing is also consistent with the precedents of this Court. Thus, in the case of Cantoral Benavides
v. Peru, the Court pointed out that the elements that constitute torture include “the intentional infliction of physical
or mental pain or suffering for certain purposes, such as obtaining information from a person, or intimidating or
punishing him/her” (Cf. Case of Cantoral-Benavides. Judgment of August 18, 2000. Series C No. 69, para. 97).
Later, in the case Bámaca-Velásquez v. Guatemala, the Court held that “the acts denounced […] were deliberately
prepared and inflicted, in order to obtain information that was relevant for the Army from Efraín BámacaVelásquez. According to the testimonies received in this proceeding, the alleged victim was submitted to grave acts
of physical and mental violence during a prolonged period of time for the said purpose and, thus, intentionally
placed in a situation of anguish and intense physical suffering, which can only be qualified as both physical and
mental torture.” (Cf. Case of Bámaca-Velásquez. Judgment of November 25, 2000. Series C No. 70, para. 158). In
the case of Maritza Urrutia v. Guatemala, the Court found that “the elements of the concept of torture established
in Article 2 of the Inter-American Convention against Torture include methods to obliterate the personality of the
victim in order to attain certain objectives, such as obtaining information from a person; or intimidation or
punishment, which may be inflicted through physical violence or through acts that produce severe mental or moral
suffering in the victim. […] some acts of aggression inflicted on a person may be classified as mental torture,
particularly acts that have been prepared and carried out deliberately against the victim to eliminate his mental
resistance and force him to accuse himself of or confess to certain criminal conducts, or to subject him to other
punishments, in addition to the deprivation of freedom itself.” (Cf. Case of Maritza Urrutia. Judgment of November
27, 2003. Series C No. 103, paras. 91 and 93). In the case of the Gómez-Paquiyauri brothers v. Peru, the Court
stated that “the components of the concept of torture […] include physical or mental suffering inflicted on an
individual, for whatever purpose,” and explained as an example that “[i]n general, in situations of massive human
rights violations, the systematic use of torture has the aim of intimidating the population.” (Cf. Case of the GómezPaquiyauri brothers, supra note 44, para. 116). Later, in the Case of Tibi v. Ecuador, the Court found that “the acts
of violence intentionally committed by agents of the State against Daniel Tibi caused him grave physical and
mental suffering. The aim of repetitive execution of these violent acts was to diminish his physical and mental
abilities and annul his personality for him to plead guilty of a crime. It has also been proven in the sub judice case
that the alleged victim was threatened and suffered harassment during the period when he was detained, and this
made him feel panic and fear for his life. All this is a form of torture, under the terms set forth in Article 5(2) of the
American Convention.” (Cf. Case of Tibi, supra note 43, para. 149). In the Case of Caesar v. Trinidad and Tobago
the Court carried out an objective analysis of the corporal punishment of flagellation and held that said punishment
constitutes a “means of torture” and a violation per se of the right to personal integrity and an “institutionalization
of violence”. Based on the cases mentioned above, the Court considered the intentionality, the level of suffering
and the purpose of the treatment, before qualifying it as torture (Cf. Case of Caesar. Judgment of March 11, 2005.
Series C No. 123, paras. 72 and 73).
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