73
a)
there is an attempt to find it responsible for the alleged torture
suffered by Mr. Tibi during the detention period, but the only evidence
regarding this complaint is the reports prepared by the French physicians, the
forensic medical report of the Police Investigations Department, and the
testimony of the alleged victim himself;
b)
Mr. Tibi was regularly examined by specialized physicians and they
never established that there had been such abuse, and the report of the
Supreme Court of Justice also states that “there is no procedural attestation”
of the alleged tortures;
c)
the French physicians’ reports were prepared two and six years after
the alleged torture supposedly took place, and they are therefore unreliable
and not sound. Obviously any sign of mistreatment would have disappeared
by then, and if that were not the case, it would be very difficult to establish
the cause of the injuries. In this regard, “the State challenge[d] the reports
by the French physicians, doctors Christian Rat, Samuel Gérard Benayoun,
and Philippe Blanche, as they are neither trustworthy, nor impartial, nor
timely;”
d)
the forensic medical reports issued by Ecuadorian specialists reached
the conclusion that Mr. Tibi had a facial asymmetry and that he had
dermatological injuries in his lower limbs. The Ecuadorian report at no point
reached the conclusion that there were signs of alleged burns on the alleged
victim’s legs, caused by cigarettes and red-hot metal objects, but rather that
they were dermatological signs;
e)
there are no consistent indicia or presumptions that can lead to a solid
conclusion that there was torture or other cruel, inhumane, or degrading
treatment or punishment against Daniel Tibi by any member or functionary
with public authority, or worse yet, with support from or tolerance by
government authorities, so the State cannot be found responsible for facts
which have never been irrefutably proven; and
f)
according to the testimony of the physicians who appeared before the
Court during the oral phase of the instant proceeding, the period between the
alleged tortures and the examinations makes it impossible to specifically
diagnose the etiology of the alleged lesions.
Considerations of the Court
142.
Article 5 of the Convention establishes that:
1. Every person has the right to have his physical, mental, and moral integrity
respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or
treatment. All persons deprived of their liberty shall be treated regarding for the
inherent dignity of the human person.
3. Punishment shall not be extended to any person other than the criminal.
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