117
is an extremely traumatic experience that may have serious consequences163 and it
causes great physical and psychological damage that leaves the victim “physically
and emotionally humiliated”, situation difficult to overcome with time, contrary to
what happens with other traumatic experiences.164
312. Based on the aforementioned and taking into consideration that stated in
Article 2 of the Inter-American Convention to Prevent and Punish Torture, this
Tribunal concludes that the acts of sexual violence to which an inmate was submitted
under an alleged finger vaginal “examination” (supra para. 309) constituted sexual
rape that due to its effects constituted torture. Therefore, the State is responsible for
the violation of the right to humane treatment enshrined in Article 5(2) of the
American Convention, as well as for the violation of Articles 1, 6, and 8 of the
mention Inter-American Convention to Prevent and Punish Torture, in detriment of
the female inmate indicated in Appendix 2 of victims of the present Judgment that
for these effects is considered part of the same.
313. The Special Rapporteur of the UN for Violence against Women has
established, referring to the violence against women within a context of an armed
conflict, that “[s]exual aggression is often considered and practiced as a means to
humiliate the adversary” and that “sexual rape is used by both parties as a symbolic
act.” 165 This Tribunal acknowledges that sexual violence against women has
devastating physical, emotional, and psychological consequences for them,166 which
are exacerbated in the cases of women who are imprisoned.167
4)
General detention conditions to which the inmates were submitted after
“Operative Transfer 1”
314. Criminal sanctions are an expression of the State’s punitive power and “they
imply detriment, deprivation, alteration of a person’s rights, as a consequence of an
163
Cfr. U.N., Human Rights Commission. 50° meeting session. Matter of the human rights of all
persons submitted to any form of detention or imprisonment, and especially torture and other cruel,
inhuman, or degrading treatments or punishments. Report of the Special Rapporteur, Mr. Nigel S. Rodley,
presented in accordance to resolution 1992/32 of the Human Rights Commission. Doc. E/CN.4/1995/34 of
January 12, 1995, para. 19.
164
Cfr. Eur.C.H.R., Case of Aydin v. Turkey (GC), Judgment of 25 September 1997, App. No.
57/1996/676/866, para. 83.
165
Cfr. U.N., Human Rights Commission, 54º meeting period. Report presented by Mrs. Radhika
Coomaraswamy, Special Rapporteur on violence against women, with the inclusion of its causes and
consequence, pursuant to resolution 1997/44 of the Commission. Doc. E/CN.4/1998/54 of January 26,
1998, paras. 12 and 13.
166
Cfr. U.N, Human Rights Commission, 54º session. Report presented by Mrs. Radhika
Coomaraswamy, Special Rapporteur on violence against women, with the inclusion of its causes and
consequences, pursuant to resolution 1997/44 of the Commission. Doc. E/CN.4/1998/54 of January 26,
1998, para. 14.
167
Cfr. Oral presentation before the Human Rights Commission of the Special Rapporteur of the
United Nations on Torture, Peter Kooijmans, included in: U.N., Commission on Human Rights. 48º session.
Summary Record of the 21st Meeting, Doc. E/CN.4/1992/SR.21 of February 21, 1992, para. 35; and U.N.,
Human Rights Commission. 50° session. Matter of the human rights of all persons submitted to any form
of detention or imprisonment, and especially torture and other cruel, inhuman, or degrading treatments or
punishments. Report of the Special Rapporteur, Mr. Nigel S. Rodley, presented in accordance to resolution
1992/32 of the Human Rights Commission. Doc. E/CN.4/1995/34 of January 12, 1995, para. 16.