15
b)
the State cannot be punished for obligations that it has not undertaken
and that did not exist at the time of the alleged facts; there could, instead, be
violations of Article 5 of the American Convention.
Pleadings of the Commission
57.
The Commission argued that:
a)
it will not refer to said preliminary objection because neither the Article
50 of the American Convention report nor the application before the Court
had referred to the Inter-American Convention against Torture; and
b)
it asked the Court to dismiss this objection.
Pleadings of the representatives of the alleged victim and his next of kin
58.
The representatives of the alleged victim and his next of kin stated that:
a)
Ecuador ratified the Inter-American Convention against Torture on
November 9, 1999 and it entered into force for the State on December 9 of
that year, independently of the date on which the State published it in its
Official Gazette, pursuant to Article 22 of the Inter-American Convention
against Torture;
b)
pursuant to the Vienna Convention on the Law of Treaties, the
provisions of the treaty do not establish obligations of a State Party in regards
to an act or fact that took place prior to the entry into force of the treaty;
c)
they did not ask the Court to rule on the violations that took place
before December 9, 1999; and
d)
the State has begun no investigation with the aim of identifying and
punishing those responsible for the torture inflicted on Mr. Tibi. There is no
evidence, either, of any investigation regarding the abuse, mistreatment, and
death threats received by the victim from other inmates. Therefore, the
State abridged Articles 1, 6 and 8 of the Inter-American Convention against
Torture, which refer to the obligation of the State to prevent, investigate and
punish torture, an obligation which to date has not been fulfilled. The Court
has jurisdiction to rule on these violations.
Considerations of the Court
59.
Before considering the instant objection filed by the State, this Court deems it
necessary to specify that it refers to an argument regarding a time-related aspect of
its jurisdiction (ratione temporis) rather than an objection regarding the subject
matter of the case (ratione materiae).
60.
The representatives of the alleged victim and his next of kin asked the Court
to find the State responsible for the alleged lack of prevention, investigation, and
punishment of the torture, as well as for the deficient definition of the crime of
torture. They did not ask the Court to rule on violations of the Inter-American
Convention against Torture committed before it entered into force in Ecuador.
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