Deprived of Liberty in the Americas, which states that intrusive vaginal and anal searches
shall be prohibited by law, establishes standards very similar to those of the Mandela Rules. 635
461. This Court has established in its constant case law that the duty to investigate is an
obligation of means and not of result, which must be assumed by the State as its own legal
duty, not as a mere formality preordained to be ineffective, or as a step taken by private
interests 636 that depends upon the initiative of the victim or his family or upon their offer of
proof. 637 The investigation must be serious, impartial and effective, and be aimed at
determining the truth and ensuring the pursuit, capture, prosecution and eventual
punishment of the perpetrators of the acts. 638 Likewise, due diligence requires that the
investigating body carry out all the actions and inquiries necessary to achieve the desired
result. Otherwise, the investigation is not effective under the terms of the Convention. 639
462. In particular, in accordance with Article 1(1) of the American Convention, the obligation
to guarantee the rights recognized in Article 5(1) and 5(2) of the American Convention entails
the duty of the State to investigate possible acts of torture or other cruel, inhuman or
degrading treatment. 640 The obligation to investigate is reinforced by the provisions of Articles
1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, which require the
States Parties “to take effective measures to prevent and punish torture within their
jurisdictions,” as well as “to prevent and punish […] other cruel, inhuman or degrading
treatment or punishment.” Furthermore, under Article 8 of said Convention, “States Parties
shall guarantee that any person making an accusation of having been subjected to torture
within their jurisdiction shall have the right to an impartial examination of his case. Likewise,
if there is an accusation or well-grounded reason to believe that an act of torture has been
committed within their jurisdiction, the States Parties shall guarantee that their respective
authorities will proceed properly and immediately to conduct an investigation into the case
and to initiate, whenever appropriate, the corresponding criminal process.”
463. In this specific case, the Court does not have sufficient evidence to prove that the
mistreatment denounced actually occurred. The Court also notes that in final decision No. 010223-2006 of the Department of Administrative Procedures of the Ministry of Justice, issued on
May 7, 2009, it was determined that the responsibility of the alleged offender could not be
proven and therefore it was not appropriate to apply any sanction for the alleged acts
committed against the inmates. This decision states that, “according to witnesses brought to
the proceeding and based on evidence gathered in the administrative file, it does not appear
that the person involved here had engaged in degrading, discriminatory and unequal
treatment when searching the inmates of Area B, Cellblock D2, Dormitory 3 of [CAI] La
Reforma.” 641 In this regard, this Court does not find arguments or evidence that demonstrate
Cf. Matter of the Penitentiary Complex of Curado regarding Brazil. Provisional Measures. Order of the
Inter-American Court of Human Rights of November 23, 2016, paras. 44 and 45, and United Nations Standard
Minimum Rules for the Treatment of Prisoners, Rules 51 and 52; Principles and Best Practices on
the Protection of Persons Deprived of Liberty in the Americas, Principle XXI.
636
Cf. Case of Velásquez Rodríguez v. Honduras, Merits, supra, para. 177, and Case of Espinoza Gonzáles v.
Peru, supra, para. 238.
637
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra, para. 177, and Case of Espinoza Gonzáles v.
Peru, supra, para. 238.
638
Cf. Case of Juan Humberto Sánchez v. Honduras. Preliminary objection, merits, reparations and costs.
Judgment of June 7, 2003. Series C No. 99, Para. 127, and Case Espinoza Gonzáles v. Peru, supra, para. 238.
639
Cf. Case of the Serrano Cruz Sisters v. El Salvador. Merits, reparations and costs. Judgment of March 1, 2005.
Series C No. 120, Para. 83, and Case of Espinoza Gonzáles v. Peru, supra, para. 238.
640
Cf. Case of Ximenes Lopes v. Brazil. Judgment of July 4, 2006. Series C No. 149, para. 147, and Case of
Espinoza Gonzáles v. Peru, supra, para. 239.
641
Final Decision No. 010-223-2006 of the Department of Administrative Procedures of the Ministry of Justice,
of May 7, 2009, page 17.
635
140
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