47
155. Based on the foregoing consideration, the Court considers that no effective
remedy was available to guarantee the next of kin of Mr. Baldeón-García, within a
reasonable time, the right to fair trial in compliance with legal safeguards.
b)
Obligation to carry out an investigation in the event of torture or other
treatment in violation of Article 5 of the Convention against Mr. Bernabé
Baldeón-García
156. The Court understands that, based on the general obligation to guarantee
every person subject to its jurisdiction the human rights set forth in Article 1(1) of
the Convention, together with the right to personal integrity set forth in Article 5
(Right to Personal Integrity) of the treaty, the State has the obligation to
immediately initiate ex officio an effective investigation to identify, prosecute and
punish perpetrators when a complaint has been filed or when there are sufficient
reasons to believe that an act of torture has been committed.89
157. Furthermore, this action is specifically regulated in Articles 1, 6 and 8 of the
Inter-American Convention against Torture, which bind State Parties to take all steps
that may be effective to prevent and punish all acts of torture within the scope of
their jurisdiction, and to guarantee an impartial examination of all torture cases90
(supra para. 136). Otherwise, that would amount to an infringement of the absolute
prohibition against torture and other cruel, inhuman or degrading treatment.91 Peru is
a State Party to the treaty since April 28, 1991 (supra para. 112).
158. Since the obligation to investigate was pending at the time the Inter-American
Convention against Torture become effective for the State (supra para. 112), for the
purposes of the examination contained herein, the Court will apply Articles 1, 6 and 8
of the Convention, which provide for this obligation.
159. In the instant case, the Court finds that Peru failed to act in compliance with
these provisions. The corpse of Mr. Bernabé Baldeón-García had severe injuries
(supra para. 72(20)), and that circumstance should have been sufficient ground for
competent authorities to initiate an ex officio investigation of the events, which was
never carried out.
160. In the section on the right to life, the Court concluded that the post-mortem
examination of the victim was deficient (supra para. 101). The expert witness María
Dolores Morcillo pointed out that the post-mortem examination performed in the
instant case did not include a description of the skull. Moreover, said examination
only indicated that the face of Mr. Bernabé Baldeón-García was bruised, but did not
provide further details on that matter. As to the description of the corpse, the
examination only specified that “there are no signs,” without specifying the type of
sign referred to, “specifically, whether it refers to signs of trauma." Based on the
above, the expert witness found that the post-mortem examination was performed
by a “person not skilled or qualified for that purpose.”
Cf. Case of Gutiérrez-Soler, supra note 4, para. 54; and Case of Tibi, supra note 71, para. 159.
Likewise, Cf. Eur.C.H.R., Assenov and others v. Bulgaria, no. 90/1997/874/1086, Judgment of October 28,
1998, para. 102; and Eur.C.H.R., Ilhan v. Turkey [GC], No. 22277/93, Judgment of June 27, 2000, paras.
89-93.
89
90
Cf. Case of Gutiérrez-Soler, supra note 4, para. 54; and Case of Tibi, supra note 71, para. 159;
and Case of the Gómez-Paquiyauri brothers, supra note 44, para. 114.
91
Cf. Eur.C.H.R., Assenov and others v. Bulgaria, supra note 89, para. 102.
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