26
the duty to fulfill all the obligations arising out of the Convention, even if the Court
has no jurisdiction to rule on the alleged violations of said instrument.36 Mention
should be made that the purpose and goal of the Convention is to protect human
beings; therefore, it requires that the right to life be interpreted and enforced so that
its guarantees are truly practical and effective (effet utile).37
86.
Similarly, the Court has previously analyzed the obligations set forth in
Articles 6 and 8 of the Convention against Torture in relation to the events occurred
prior to the time the treaty became effective for the State, and has ruled that “the
obligations undertaken under said treaty must be fulfilled by the State”38 once the
aforementioned Convention against Torture becomes effective. Based on the
foregoing, the Court finds that the State has the duty to investigate and punish the
alleged torture of Gerardo Vargas-Areco in the domestic jurisdiction, pursuant to
Articles 6 and 8 of the Convention against Torture. Said obligation is binding since
March 9, 1990, notwithstanding any source of obligations other than the
aforementioned Convention against Torture. Since March 26, 1993, the Court has
jurisdiction to rule on the non-fulfillment of the obligation set forth in the Convention
against Torture.
87.
In the instant case, the Court finds that the extra-judicial execution of
Gerardo Vargas-Areco and his alleged torture were not effectively and fully
investigated. For instance, the authorities who carried out the investigation after
1993, should have analyzed the inconsistencies between the reports of the military
physician who participated at the initial stage and of Dr. Ribamar Da Silva, and
should have ordered that an autopsy be performed by a third expert, carefully taking
into account its results. Instead, said authorities only asked different physicians to
analyze photographs of the mortal remains of Gerardo Vargas-Areco in order to
establish “if the wounds present in the body can be associated with acts of torture
[…].” To that effect, on May 6, 2002; September 22, 2003; October 3, 2003;
October 26, 2003; and July 5, 2004, the physicians Mario J. Vázquez-Estigarribia,
Octaviano Aquiles Franco-Saggia, Fausto Ricardo Paredes-Pavón, Elida SalinasRamírez and José G. Bellassai-Zayas, respectively, issued expert reports regarding
the photographs of the dead body of Gerardo Vargas-Areco (supra para. 71(18) to
71(20)).
88.
As indicated in the expert witness report of Dr. Ravioli, the certificate of
removal of the body and the medical reports drafted during criminal investigations
do not satisfy the formalities of an autopsy, which constitutes the adequate technical
means to establish the cause of death (supra para. 69.B.3).
89.
In its expert witness report, Dr. Ravioli indicated that, “the examination of the
photographs enclosed allows us to confirm or reject the presence of acts of torture,”
and added that the “surveys performed were fully insufficient to investigate a violent
death. [Furthermore, the] surveys performed do not provide relevant information to
36
Cf. Case of Moiwana Community, supra note 7, para. 43.
37
Cf. Case of Montero-Aranguren et al. (Detention Center of Catia), supra note 4, para. 64; and
Case of the Ituango Massacres, supra note 3, para. 129; and Case of Baldeón-García, supra note 3, para.
83. In the same regard, cf. Eur.C.H.R., McCann and Others v. the United Kingdom, Judgment of
September 27, 1995, Series A No. 324, paras. 146-147.
38
Cf. Case of Baldeón-García, supra note 3, para. 158; Case of Gutiérrez-Soler, supra note 29,
para. 54; and Case of Tibi, supra note 29, para. 159.