67
151. With regard to the treatment of Bámaca Velásquez by the State authorities
during his detention, the Court has taken into account a series of testimonial
evidence given by former guerrillas, which may be classified as direct evidence,
which indicates that Bámaca Velásquez was tortured by State agents at the various
military bases where he was kept captive. The witness, de la Roca Mendoza,
declared that Bámaca Velásquez was beaten and he heard his cries in the night
(supra 93 C h); while the witness, Cabrera López, saw him swollen, tied up and with
bandages on his extremities and his body (supra 93 C a).
152. As this Court has often repeated, in cases of forced disappearance, the State's
defense cannot rely on the impossibility of the plaintiff to present evidence in the
proceedings since, in such cases, it is the State that controls the means to clarify the
facts that have occurred in its jurisdiction and, therefore, in practice, it is necessary
to rely on the cooperation of the State itself in order to obtain the required
evidence102.
153.
that
In the same way, the United Nations Human Rights Committee has indicated
the burden of proof cannot fall solely on the author of the communication, considering,
in particular, that the author and the State Party do not always have equal access to the
evidence and that, frequently, it is only the State Party that has access to the pertinent
information [...]. In cases when the authors have presented charges supported by
attesting evidence to the Committee [...] and in which subsequent clarification of the
case depends on information that is exclusively in the hands of the State Party, the
Committee may consider that those charges are justified unless the State Party presents
satisfactory evidence and explanations to the contrary103.
154. The probative elements gathered while processing this case lead the Court to
consider proved the abuses that, it is alleged, were committed against Bámaca
Velásquez during his reclusion in various military installation. The Court must now
determine whether such abuses constitute torture or cruel, inhuman or degrading
treatment. Clearly, it is important to state that both types of acts are strictly
prohibited under any circumstance104.
155. The Inter-American Court has observed that when a State faces a situation of
internal upheaval, this should not result in restrictions in the protection of the
physical integrity of the person. Specifically, the Court has indicated that
[… a]ny use of force that is not strictly necessary to ensure proper behavior on the part
of the detainee constitutes an assault on the dignity of the person [...] in violation of
Article 5 of the American Convention105.
102
Cf. Cantoral Benavides Case, supra note 56, para. 55; Neira Alegría et al. Case. Judgment of
January 19, 1995. Series C No. 20, para. 65; Caso Gangaram Panday, supra note 86, para. 49; Godínez
Cruz Case, supra note 53, paras. 141 and 142; and Velásquez Rodríguez Case, supra note 53, paras. 135
and 136.
103
Communication Hiber Conteris v. Uruguay, No. 139/1983, paras. 182-186; [17th to 32nd
sessions (October 1982 to April 1988)]. Selection of Decisions of the Human Rights Committee adopted in
accordance with the Optional Protocol, Vol. 2, 1992.
104
105
Cf. Cantoral Benavides Case, supra note 56, para. 95.
Cf. Cantoral Benavides Case, supra note 56, para. 96; Castillo Petruzzi et al. Case, supra note 50,
para. 197; and Loayza Tamayo Case, supra note 52, para. 57.
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