47
Messrs. Cabrera and Montiel]. Even more, the medical history of the patients
coincides with the corresponding development of the symptoms described by the
medical science.”166 Nevertheless, they recommended “to perform, at any case […]
additional examinations to both individuals in order to determine […] the total
physical and psychological harm caused by the torture and to propose the
corresponding treatment.”167
122.
The domestic courts and the State168 considered that said expert opinion
was insufficient to prove torture, because: i) it was alleged lack of impartiality of
doctors Tramsen and Tidball-Binz since the alleged victims recognized them as
advocates of trust and “in order to have access to the confinement center, the
representatives “authorized [them] […] as members of the legal area of their
organization [which was not necessary, given that] there are procedures to
authorize a medical evaluation [...] of detained people;” ii) the conclusions of the
experts witnesses constituted inaccurate and general assessments; they did not
take into account the evidence existing in the criminal proceeding and the
conclusions of the experts’ opinion were not supported by any scientific study but
only with a body examination,169 and iii) it was prepared a year later. Regarding
the first argument, the Court reiterates what was established in its Resolution of
August 23, 2010, in the sense that “according to Mexican law, the sole designation
of a ‘person of trust’ does not necessarily imply the ‘material conduct of the
defense’” and that “there is no record of a defense proceeding conducted by Mr.
Tramsen, instead there is evidence that his action was limited to the expert
opinion” (supra para. 26). In second place, the Court considers that Messrs.
Tramsen and Tidball-Binz met the minimum requirements established in the
Istanbul Protocol since they drafted an accurate report containing an interview,
history, physical and physiological test, opinion and authorship.170 Finally, the Court
notes that the Protocol provides that “[t]he timeliness of such medical examination
is particularly important” and "[a] medical examination should be undertaken
regardless of the length of time since the torture,”171 therefore, the conduct of the
examination a year after the facts does not question its validity.
166
Cf. Physicians for Human Rights- Denmark. The case of Messrs. Cabrera and Montiel, supra
note 165, folio 8382.
167
Cf. Physicians for Human Rights- Denmark. The case of Messrs. Cabrera and Montiel, supra
note 165, folio 8383.
168
The State attached an “Analysis of the expert opinion furnished as evidence”, issued without a
date, in which the Public Prosecutor’s Office (PGR [“Procuraduría General de la República” in Spanish])
“made an analysis in which the expert opinion issued by the organization “Physicians for Human Rights
Denmark” and by the other [,] the proceedings that [existed] […] regarding the different medical
certifications […] in [the case file].”.” In view of this, the PGR concluded, inter alia, that the expert
opinion prepared by Messrs. Tramsen and Tidball-Binz: i) “does not adjust to what a forensic medical
expert opinion should methodologically consist of, apart from the fact that it was not offered as expert
evidence with the formalities required by the Federal Code of Criminal Procedures;" ii) "it lacks of
scientific-technical methodology;" iii) "[i]t does not contemplate the information of international
standards;” iv) “it is dogmatic given that it does not select nor order the information obtained by means
of the version of the patients, search and identification of fingerprints, indicia or after-effects of physical
injuries and/or psychological disorders closely related to the facts denounced;” v) “[t]he medical
investigation was conducted 14 months and 27 days after the facts and was presented with an
informative style of a Report type, regarding facts allegedly lived by the petitioners;” vi) “it did not
[take] into account the existing reports and medical certificates," and vii) that "the evidence is not
consistent with the alleged narration of the facts, therefore, the physical-clinical-psychological diagnosis
does not suggest a true allegation of physical or mental torture.”.” Cf. Analysis of the expert report
exhibited as evidence. Public Prosecutor’s Office of the Republic (PGR) without date (record of annexes
to the answer to the application, volume XLV, folios 22471 to 22477).
169
Cf. Judgment issued on August 14, 2002 by the Second Collegiate Tribunal, supra note 84, folio
14464.
170
Cf. Istanbul Protocol, supra note 149, para. 82.
171
Cf. Istanbul Protocol, supra note 149, para. 103.
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