-5“independently constituted torture or another form of cruel, inhuman, or degrading
treatment or punishment; or if, on the contrary, the Court so ordered because it
considers that their legal classification is a matter that falls under domestic law in
compliance with the measure of reparation related to the 'Obligation to investigate.'” It
indicated that “the Peruvian State has no doubt, [regarding that] what the victim
described as 'inappropriate touching' […] for the Court constituted an act of sexual
violence and not rape,” but that it submits the request of interpretation as to whether
the facts should be classified as torture.” Based on the above, it requested that the
Court clarify whether the ill-treatment discussed in paragraphs 357 to 368 “constituted
torture or whether it constituted cruel, inhuman or degrading treatment or punishment
[or whether] the legal classification of the facts should be determined in the
investigation carried out in the national jurisdictional bodies in compliance with the
reparation measure ordered by the Court.”
17. The Commission pointed out that "a legal classification of torture, cruel,
inhuman or degrading treatment, on their own, cannot be applied to each one of the
physical and psychological abuses that a person could suffer in the same
circumstances of time, manner and place," since "It is the accumulation of elements,
the sum of effects, and the defenseless context in which they may occur that allow for
a specific classification when it comes to torture." The Commission considered that said
clarification in the State's request for interpretation "is inadmissible and that it was
already made by the Honorable Court in its judgment under the standards of
international human rights law."
18. The representative mentioned that “the Court did not indicate that such sexual
violence did not constitute rape, as indicated by the State, but rather that it was not
'possible to determine whether the said sexual violence also constituted rape.'”
Additionally, the representative considered that the Court “did rule on the fact that
such treatment applied to J during her detention, including the sexual violence to
which she was subjected, constituted torture,” to the extent that “it conclude[d]
'taking into account the set of circumstances of the case' [that such treatment]
constituted a violation of Article 5 of the Convention in the form of torture, which the
Court had specifically defined in paragraph 364” and a violation of Articles 6 and 8 of
the American Convention to Prevent and Punish Torture.
Considerations of the Court
19. Based on the State's request, as well as the representative's observations, the
Court finds it pertinent to clarify its considerations and conclusions regarding the
possible classification of the ill-treatment suffered by Ms. J. at the time of her arrest as
torture. In this regard, the judgment considered that:
362. […] the violation of an individual’s right to physical and mental integrity has different
levels that range […] from torture to other types of humiliations or cruel, inhuman or
degrading treatment, the physical and mental aftereffects of which vary in intensity according
to factors that are endogenous and exogenous to the individual (such as duration of the
violation, age, sex, context and vulnerability) that must be analyzed in each specific situation.
In other words, the personal characteristics of an alleged victim of torture or cruel, inhuman or
degrading treatment must be taken into account when determining whether personal integrity
was violated, since such characteristics can change the individual's perception of reality, and
therefore, increase the suffering and the sense of humiliation when they are subjected to
certain treatments.
363. The Court has indicated that any use of force that is not strictly necessary due to the
detainee's own behavior constitutes an attack on human dignity, in violation of Article 5 of the
American Convention. In the case at hand, the State has not shown that the force used at the