27
clarify the circumstances surrounding the death or to progress on the investigation to
effectively establish the commission of acts of torture.” Dr. Ravioli concluded that the
truth about the actual events could have only been found “through exhumation and
performance of an autopsy on the body,” but said procedures were not carried out
(supra para. 69.B.3).
90.
Based on the foregoing, the Court considers that the State had the obligation
to exhume and perform an autopsy on the body of the minor Vargas-Areco to
establish, with the maximum degree of certainty, if he was subject to acts of torture.
The obligation of the State became effective at the time the State learnt of the
alleged acts of torture. As regards to the jurisdiction of the Court, the State failed to
comply with the duty to exhume and perform said autopsy after March 26, 1993.
Pursuant to the expert opinions of physicians Fondebrider and Ravioli (supra para.
69.B.2 and 69.B.3), even considering the natural decomposition process undergone
by the body, the State could have performed certain surveys after that date to
establish if the body of the minor Vargas-Areco had bone fractures that could be
associated with acts of torture.
91.
Mention must be made of the fact that the United Nations Manual on the
Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary
Executions (hereinafter “the Istanbul Protocol”) sets forth that state authorities
conducting an investigation should at least, inter alia: a) identify the victim; b)
collect and preserve evidence related to the death in order to assist with any
investigation; c) identify possible witnesses and obtain testimonies in relation to the
death under investigation; d) determine the cause, manner, place and time of death,
as well as any pattern or practice which may have brought about such death, and e)
distinguish between natural death, accidental death, suicide and homicide. Moreover,
the Court points out that: a) a thorough investigation of the crime scene should be
conducted, and b) rigorous autopsies and analyses of human remains should be
performed by competent professionals, using the best procedures available.39
92.
For the purposes of this case, it is particularly useful to bear in mind that
Article 12 of the “Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions” sets forth that:
The body of the deceased person shall not be disposed of until an adequate autopsy is
conducted by a physician, who shall, if possible, be an expert in forensic pathology. [...]
If the body has been buried and it later appears that an investigation is required, the
body shall be promptly and competently exhumed for an autopsy. If skeletal remains are
discovered, they should be carefully exhumed and studied according to systematic
anthropological techniques.
93.
Moreover, said procedures should take into consideration the international
rules for documenting and interpreting forensic evidence elements regarding the
commission of acts of torture and, particularly, those defined in the Istanbul
Protocol.40
39
Cf. Case of Ximenes-Lopes, supra note 3, para. 179; and Case of the Ituango Massacres, supra
note 3, para. 298; Case of Baldeón-García, supra note 3, para. 96; and UN, Manual on the Effective
Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, Doc E/ST/CSDHA/.12
(1991).
40
Cf. U.N.O., United Nations High Commissioner for Human Rights, Geneva, 2001, available at:
www.ohchr.org/english/about/publications/docs/8rev1.pdf.