4
definition established in the CIPST, it had reached the conclusion that “[a]n
international juridical system of absolute prohibition of all forms of torture, both
physical and psychological,12 has been established.”13
13.
Since an international corpus juris has been established, it is admissible to
see how it has been applied in order to give the greatest protection to the human
rights of the individual. Perhaps the best summary of the position that could be
adopted in this case, which involves a serious violation of the integrity of two girls
and a young woman – who belonged to a sector that society has placed in a
vulnerable situation, which, in turn, was permitted by the State – can be found in a
judgment of the International Criminal Tribunal for the Former Yugoslavia
(hereinafter “Tribunal for the Former Yugoslavia”).
14.
In the Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic
case,14 the Tribunal for the Former Yugoslavia refers, in paragraph 479, to the
jurisprudence of the European Court15 and, in paragraph 482, to its own case law16 in
order to state that the definition of the Convention against Torture cannot be
regarded as a provision of customary law. The definition contained in that
Convention can only be used to the extent that other international instruments or
national laws do not give the individual better or more extensive protection.
Moreover, this reiterates one of the basic provisions of the application of the human
rights instruments found in Article 29(b)17 of the American Convention and in Article
5(2)18 of the International Convention on Civil and Political Rights.
15.
After examining all the laws and rules that refer to torture, the Tribunal for
the Former Yugoslavia reached, on the one hand, the conclusion, which I share, that
12
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections. Judgment of June 26,
1987. Series C No. 1, para.103. Similarly, Case of Cantoral Benavides v. Peru. Merits. Judgment of August
18, 2000. Series C No. 69, para. 102; Case of Maritza Urrutia v. Guatemala. Merits, Reparations and
Costs. Judgment of November 27, 2003. Series C No. 103, para. 92, and Case of the Gómez Paquiyauri
Brothers v. Peru. Merits, Reparations and Costs. Judgment of July 8, 2004. Series C No. 110, para. 112.
13
Case of the Gómez-Paquiyauri Brothers v. Peru. Merits, Reparations and Costs. Judgment of July
8, 2004. Series C No. 110, para. 112. See also Case of Fermín Ramírez v. Guatemala. Merits, Reparations
and Costs. Judgment of 20 June 20, 2005. Series C No. 126, para. 117, and Case of the Miguel Castro
Castro Prison v. Peru. Merits, Reparations and Costs. Judgment of November 25, 2006. Series C No. 160,
para. 271.
14
Cf. International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Trial
chamber, Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Judgment of 22 February
2001.
15
Costello-Roberts v. UK, 25 March 1993, Series A, No 247-C, paras. 27-28; HLR v. France, 29
April 1997, Reports 1997-III, p. 758, para. 40, and A v. UK, 23 September 1998, Reports of Judgments
and Decisions 1998-VI, p. 2692, para. 22.
16
Cf. International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Trial
chamber, Prosecutor v Furundžija, Case IT-95-17/1-T, Judgment, 10 December 1998, para. 160.
17
Article 29(b) of the Convention establishes:
No provision of this Convention shall be interpreted as:
b) restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws
of any State Party or by virtue of another convention to which one of the said states is a party;
18
Article 5(2) of the Convention establishes:
There shall be no restriction upon or derogation from any of the fundamental human rights
recognized or existing in any State Party to the present Covenant pursuant to law,
conventions, regulations or custom on the pretext that the present Covenant does not
recognize such rights or that it recognizes them to a lesser extent.
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