37
obliterate the personality of the victim or to diminish his physical or mental capacities,
even if they do not cause physical pain or mental anguish.
And adds:
The concept of torture shall not include physical or mental pain or suffering that is
inherent in or solely the consequence of lawful measures, provided that they do not
include the performance of the acts or use of the methods referred to in this article.
99.
The European Court has pointed out recently that certain acts that were
classified in the past as inhuman or degrading treatment, but not as torture, may be
classified differently in the future, that is, as torture, since the growing demand for
the protection of fundamental rights and freedoms must be accompanied by a more
vigorous response in dealing with infractions of the basic values of democratic
societies.54
100. It should be pointed out that, according to international standards for
protection, torture can be inflicted not only via physical violence, but also through
acts that produce severe physical, psychological or moral suffering in the victim.
101. Both the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, and the Inter-American Convention on the same subject,
make reference to this possibility. Also, by institutionalizing the right to personal
integrity, the latter of these two international instruments makes explicit reference to
respect for the psychological and moral integrity of the person.
102. International jurisprudence has been developing the notion of psychological
torture.
The European Court of Human Rights has established that the mere
possibility of the commission of one of the acts prohibited in Article 3 of the
European Convention is sufficient to consider that said article has been violated,
although the risk must be real and imminent. In line with this, to threaten someone
with torture may constitute, in certain circumstances, at least “inhuman
treatment.”55 That same Tribunal has decided that, for purposes of determining
whether Article 3 of the European Convention on Human Rights has been violated,
not only physical suffering, but also moral anguish, must be considered.56 Having
examined communications received from individuals, the United Nations Human
Rights Committee has classified the threat of serious physical injury as a form of
“psychological torture.”57
103. The above leads to the conclusion that a true international system prohibiting
all forms of torture has been put in place.
104. Considering the circumstances of the case, and the context in which the facts
took place, this Tribunal considers, beyond a reasonable doubt, that at least some of
the acts of aggression examined in this case can be classified as physical and
54
cfr. Eur. Court HR, Selmouni v. France, supra note 51, para. 101.
55
cfr. Eur. Court HR, Campbell v. Cosans, Judgment of 25 February 1982, Series A Vol. 48, para.
26.
56
cfr. Eur. Court HR, Soering v. United Kingdom, Judgment of 7 July 1989, Series A Vol. 161,
paras. 110 and 111.
57
cfr. United Nations. Human Rights Committee. Miguel Angel Estrella v. Uruguay, No. 74/1980 of
March 29, 1983, paras. 8.6 and 10.
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