53
be subjected to any form of torture. Also, numerous international instruments recognize this
right and reiterate the same prohibition, 227 including international humanitarian law. 228
142. In addition, the Court has indicated that the violation of the right to physical and mental
integrity has different connotations of degree, and ranges from torture to other kinds of abuse
or cruel, inhuman or degrading treatment, the physical and mental aftereffects of which vary in
intensity in accordance with factors that are endogenous and exogenous to the individual (such
as, duration of the treatment, age, sex, health, context, and vulnerability) that must be
analyzed in each specific situation. 229 In other words, the personal characteristics of a presumed
victim of torture or cruel, inhuman or degrading treatment must be taken into account when
determining whether their personal integrity was violated, because these characteristics may
change the individual’s perception of the reality and, consequently, increase the suffering and
the feeling of humiliation when they are subjected to certain treatments. 230
143. In order to define what should be understood as “torture” in light of Article 5(2) of the
American Convention, the Court’s case law establishes that an act constitutes torture when the
ill-treatment: (i) is intentional; (ii) causes severe physical or mental suffering, and (iii) is
committed with an objective or purpose. 231
B) The detention of Gladys Espinoza and the events that took place on the
premises of the DIVISE and DINCOTE in April and May 1993
B.1. Arguments of the Commission and of the parties
144. The Commission argued that, when she was arrested on April 17, 1993, Gladys Espinoza
was subjected by police officials to blows, abuse and threats that continued during her transfer
to the DIVISE offices, and persisted throughout the time she remained there. 232 According to the
Commission, on April 19, 1993, she was transferred to the DINCOTE headquarters, where she
was initially kept incommunicado, without being allowed to see her family members or a lawyer,
and she continued to be beaten and threatened. In addition, the Commission affirmed “that the
acts of violence against Gladys Espinoza were committed deliberately, in order to humiliate her,
to reduce her physical and psychological resistance, and to obtain information on her presumed
226
Cf. Inter-American Convention to Prevent and Punish Torture, articles 1 and 5; African Charter on Human and
Peoples’ Rights, Article 5; African Charter on the Rights and Welfare of the Child, Article 16; Convention of Belem do
Pará, Article 4, and European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3.
227
Cf. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
principles 1 and 6; Code of conduct for law enforcement officials, article 5; 1974 Declaration on the Protection of
Women and Children in Emergency or Armed Conflict, article 4, and Guidelines of the Committee of Ministers of the
Council of Europe on human rights and the fight against terrorism, Guideline IV.
228
Cf. inter alia, Article 3 common to the four 1949 Geneva Conventions; Geneva Convention relative to the
Treatment of Prisoners of War (Convention III), Articles 49, 52, 87, 89 and 97; Geneva Convention relative to the
Protection of Civilian Persons in Time of War (Convention IV), Articles 40, 51, 95, 96, 100 and 119; Protocol Additional
to the Geneva Conventions of 12 August 1949 relating to the Protection of the Victims of International Armed Conflicts
(Protocol I), Article 75.2.a)ii), and Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the
Protection of the Victims of Non-International Armed Conflicts (Protocol II), Article 4.2.a). See also, Case of Fleury et
al. v. Haiti, supra, para. 71, and Case of J. vs. Peru, supra, para. 304.
229
Cf. Case of Loayza Tamayo v. Peru. Merits, supra, para. 57, and Case of J. v. Peru, supra, para. 362.
230
Cf. Case of Ximenes Lopes v. Brazil. Judgment of July 4, 2006. Series C No. 149, para. 127, and Case of J. v.
Peru, supra, para. 362.
231
Cf. Case of Bueno Alves v. Argentina. Merits, reparations and costs. Judgment of May 11, 2007. Series C No.
164, para. 79, and Case of J. vs. Peru, supra, para. 364.
232
The Commission affirmed that, while she was detained in the DIVISE and the DINCOTE in April and May
1993, the presumed victim was subjected to interrogations during which she was blindfolded, suspended by her arms,
submerged in a tank with fetid water, and beaten on sensitive parts of her body, such as her head, face and back and
the soles of her feet.
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