49
2. Obligation to investigate alleged acts of torture
126.
The Court has pointed out that, according to article 1(1) of the American
Convention, the obligation to guarantee the rights enshrined in articles 5(1) and
5(2) of the American Convention embodies the duty of the State to investigate
possible acts of torture and other cruel, inhuman or degrading treatments.175 The
duty to investigate is reinforced through the provisions of Articles 1, 6, and 8 of the
Convention against Torture,176 which set forth that the State is bound to “take […]
effective measures to prevent and punish torture within its jurisdiction,” and
“prevent and punish […] other cruel, inhuman, or degrading treatment or
punishment.” In addition, according to the provision of article 8 of that Convention,
States Parties shall guarantee:
[…] that any person making an accusation of having been subjected to
torture within their jurisdiction shall have the right to an impartial
examination of his case [and]
[i]f there is an accusation or well-grounded reason to believe that an act of
torture has been committed within their jurisdiction, […] that their respective
authorities will proceed properly and immediately to conduct an investigation
into the case and to initiate, whenever appropriate, the corresponding
criminal process.
127.
This obligation to investigate is based on the facts previously analyzed
(supra paras. 111 to 125). In fact, regarding the alleged pulling of the victims’
testicles, in their statements in the domestic criminal proceeding, both Mr. Cabrera
Garcia and Mr. Montiel Flores indicated that military agents had pulled their
interesting for the petitioner; therefore, the objectivity is substantially detracted from and therefore, so
it is the reliability of the investigation presented.”.”
175
Cf. Case of Ximenes Lopez v. Brazil, Merits, Reparations and Costs. Judgment of July 4, 2006.
Series C Nº. 149, para. 147; and Case of Bayarri v. Argentina, supra note 123, para. 88; Case of
González et al (“Cotton Field”) v. Mexico, supra note 48, para. 246.
176
Article 1 of the Inter-American Convention to Prevent and Punish Torture provides that:
The State Parties undertake to prevent and punish torture in accordance with the terms of this
Convention.
Furthermore, article 6 provides that:
In accordance with the terms of Article 1, the States Parties shall take effective measures to
prevent and punish torture within their jurisdiction.
The States Parties shall ensure that all acts of torture and attempts to commit torture are
offenses under their criminal law and shall make such acts punishable by severe penalties that
take into account their serious nature.
The States Parties likewise shall take effective measures to prevent and punish other cruel,
inhuman, or degrading treatment or punishment within their jurisdiction.
Moreover, article 8 provides that:
The States Parties shall guarantee that any person making an accusation of having been
subjected to torture within their jurisdiction shall have the right to an impartial examination of
his case.
Likewise, if there is an accusation or well-grounded reason to believe that an act of torture has
been committed within their jurisdiction, the States Parties shall guarantee that their respective
authorities will proceed properly and immediately to conduct an investigation into the case and
to initiate, whenever appropriate, the corresponding criminal process.
After all the domestic legal procedures of the respective State and the corresponding appeals
have been exhausted, the case may be submitted to the international fora whose competence
has been recognized by that State.
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