56
XIII
VIOLATION OF ARTICLES 1, 6 AND 8 OF THE
INTER-AMERICAN CONVENTION
TO PREVENT AND PUNISH TORTURE
239. In its application, the Commission alleged that the State had also violated
Articles 1, 6 and 8 of the Convention against Torture, which “define more precisely
and extensively the mechanisms of protection established in Article 5 of the
American Convention”, to the detriment of Henry Giovanni Contreras, Federico
Clemente Figueroa Túnchez, Julio Roberto Caal Sandoval and Jovito Josué Juárez
Cifuentes.
Furthermore, it added that, in violation of the provisions of the
Convention against Torture, “an investigation was never initiated, nor were the
perpetrators [of this crime] prosecuted or punished” although the State was fully and
opportunely aware of the events through “[c]ompetent [national] authorities” who
“examined and recovered the bodies from the site in the San Nicolás Woods”; and
moreover, although “the Office of the Attorney-General had indicated that it was a
relevant fact in the context of the [domestic] judicial investigation” for homicide.
240. Just as the State did not make any reference to the violation of Article 5 of
the American Convention in its answer to the application, neither did it allude to the
violation of Articles 1, 6 and 8 of the Convention against Torture, nor did it offer or
contribute any type of evidence that would show that the corresponding complaints
had been effectively investigated (supra, paras. 67 and 68).
241. In its final arguments, the Commission again emphasized the lack of an
investigation into the torture and underscored that no measures had been taken that
were adequate to the nature of the evidence that had been collected. Specifically, it
mentioned that “complete autopsies” had not been performed, although this was “a
faculty of the state”; that there were no “full-length photographs of the bodies” and
that, although some photographs show clear signs of physical violence, this was not
recorded or described in the corresponding reports. Likewise, the Commission
believed that, in the context of the investigations into the five homicides, the
identification of the two police agents by witnesses, together with the ballistic tests,
should have allowed the domestic instance to conclude with certainty that police
officer Néstor Fonseca López and former police officer Samuel Valdez Zúñiga were
responsible for these deaths and by a logical assumption, for the acts of torture
against Henry Giovanni Contreras, Federico Clemente Figueroa Túnchez, Julio
Roberto Caal Sandoval and Jovito Josué Juárez Cifuentes.
242. Furthermore, the Commission cited various provisions that establish the
obligation to investigate, prosecute and punish those responsible for the crime of
torture, including: Articles 7 and 12 of the United Nations Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment46; Articles 9 and
10 of the Declaration on the Protection of All Persons from Being Subjected to
46.
Adopted and open to signature, ratification and adhesion by the General Assembly of the United
Nations in its resolution 39/46, of 10 December 1984; entered into force on June 26, 1987. Guatemala is
a party to this Convention since February 1990.