28
initiative the facts as the ones that occured in the instant case, in accordance with
the domestic law.80
96.
The Court verified that the State learned about the alleged acts of torture
committed against Hugo Ticona on several occasions, for example, by means of the
complaint filed with the National Commission of Disappeared on April 7, 1983 and
the criminal charges brought on February 28, 1985 (supra para. 74). After the
recognition of the contentious jurisdiction of the Court, that is, on July 27, 1993,
there are several official letters and legal acts conducted in the criminal proceedings
initiated for the forced disappearance of Renato Ticona, from which it is deduced that
the State knew the alleged acts of torture, namely: The request for a “reasoned
ruling” for expansion made by the District Prosecutor to the Magistrate’s Court on
criminal matters, of May 18, 2005;81 the final injunction made by the District
Prosecutor to the Magistrate's Court on criminal matters, of January 31, 2006;82
Order Nº 15/2006 issued by the Magistrate's Court on criminal matters, on March 8,
2006;83 the communication of Ticona Estrada’s family, addressed to the Ministry of
Foreign Affairs and Worship, of March 9, 2007;84 and the informative statement of
Hugo Ticona Estrada rendered before the Third Circuit Criminal Court, on November
28, 2007.85 Despite all, the State did not initiate a specific investigation for said
events neither it included the possible violations to the rights of Hugo Ticona within
the existing investigations of the forced disappearance of Renato Ticona. Moreover,
the Court notes that it was not until the decision of the Third Circuit Criminal Court of
January 8, 2008 that such court considered that “in light of the fact that there are
other criminal complaints, against other people who are not involved in the instant
proceeding, the preliminary investigation [is] then forward[ed] to the Office of Public
Prosecutors in order to comply with the law” (supra para. 75).
97.
Based on the foregoing, upon learning about the alleged facts, it came up an
obligation for the State in order to investigate the alleged violation of the right to
humane treatment to the detriment of Hugo Ticona that occurred in the context
described in paragraphs 45 to 49 of this Judgment.
Said obligation was pending
compliance on July 27, 1993, date on which the State recognized the Court’s
jurisdiction. Therefore, as of that date, this Tribunal is competent to hear the noncompliance with said obligation.
98.
In this regard, the Tribunal finds that the State did not guarantee access to
justice, based on the lack of investigation, possible punishment of the responsible
and full reparation derived from the consequences of the alleged acts of torture
committed to Hugo Ticona. Bearing in mind the above mentioned considerations, the
Court concludes that the State is responsible for the violation of the right to a fair
trial and judicial protection embodied in Articles 8(1) and 25(1) of the American
Convention, in relation to Article 1(1) therein, to the detriment of Hugo Ticona
80
Cf. Case of García Prieto et al. v. El Salvador, supra note 66. para 104; and Case of Heliodoro
Portugal v. Panamá, supra note 13, para. 143.
81
Cf. Reasoned ruling for expansion of May 18, 2005, issued by the District Prosecutor (Appendices
to the response of the petition, Appendix 3, volume 1, p. 2131).
82
Cf. Final injunction of January 31, 2006 issued by the District Prosecutor (Appendices to the
response of the petition, appendix 3, volume 2, p. 2313 to 2316).
83
Cf. Order issued by the Magistrate’s Court on Criminal Matters, in the case file Nº 15/2006 of
March 8, 2006 (Appendices to the response of the petition, appendix 3, volume 2, p. 2322 to 2325).
84
Cf. Letter of Ticona’s family to the Ministry of Foreign Affairs and Worship of March 9, 2007
(Appendices to the response of the petition, appendix 3, volume 5, p. 3058).
85
Cf. Minutes of the debate hearing of November 28, 2007, issued by the Third Circuit Criminal
Court (Appendices to the response of the petition, appendix 3, volume 12, p. 4554 to 4559).