76
them and sprinkling their faces with the powder used to make tear gas, while insulting them and
swearing at them. Also, metal rods were fixed to Gladys Espinoza’s neck and she was suspended
in the air, fainted owing to the effects of the powder thrown at her face, and resulted with
bruising to the legs and neck. The other four inmates were thrown on the floor and beaten in the
genital region. 357
211. Regarding the use of force in prisons, the Court has indicated that this should be defined
by its exceptional nature; thus, force or coercive instruments may only be used when all other
means of control have been used and have failed. 358 Moreover, the State must ensure that
inspections are carried out periodically and correctly, with the purpose of preventing violence
and eliminating risks, and based on an adequate and effective control of the interior of the
prison blocks by the prison guards, and the results of such inspections must be duly and
promptly communicated to the competent authorities. 359
212. It should be pointed out that, on previous occasions and with regard to the time of the
armed conflict in Peru, the Court has already referred to the disproportionate use of force in
prisons housing individuals implicated in proceedings for terrorism or treason, 360 and has heard
cases in which those accused of such crimes have been subjected to numerous violations of their
human rights in the prisons in which they were detained. 361 In this regard, the CVR established
that, in order to combat terrorists and subversive groups, the State implemented practices
incompatible with the effective protection of the right to life and other rights in prisons, including
extrajudicial executions and cruel and inhuman treatment, as well as the disproportionate use of
force in problematic circumstances. 362
213. First, the Court finds that sexual violence is never a permissible measure in the use of
force by the security forces. Second, the facts of this case do not reveal the existence of a
situation that would have justified the degree of force used against Ms. Espinoza (supra paras.
184 and 196). Indeed, it has not been verified that a situation of disorder existed in the prison
and the State has not proved the existence of behavior by Ms. Espinoza that differs from that
described, nor can it be understood that less harmful measures of control were used and failed.
All this, added to the prison context in which the facts of this case are inserted (supra para.
203), allows the Court to conclude that the scale of the force used entailed a violation of Article
5(1) of the Convention, in relation to Article 1(1) of this instrument, to the detriment of Gladys
Espinoza.
214. Thus, based on the description of the acts of violence suffered by Gladys Espinoza during
the incident of August 5, 1999, in the context of this case, there can be no doubt that they were
committed intentionally, that they caused severe suffering and physical repercussions, and that
they were aimed at humiliating her and punishing her (supra para. 209). In these
circumstances, these acts were forms of torture. Consequently, the Court decides that the State
357
Cf. Report of the Peruvian Ombudsman on the Yanamayo Prison, Puno, of August 25, 1999 (evidence file,
folios 1589 to 1601); Statement made by Gladys Espinoza on March 2010 (evidence file, folios 1462 and 1463);
Preliminary statement by N.G.C. (evidence file, folios 10928 to 10933), and Preliminary statement by M.L.C.M.
(evidence file, folios 8198 to 8210).
358
Cf. Case of Montero Aranguren et al. (Retén de Catia) v. Venezuela. Judgment of July 5, 2006. Series C No.
150, para. 67. Similarly, see, Case of the Barrios Family v. Venezuela. Merits, reparations and costs. Judgment of
November 24, 2011. Series C No. 237.
359
Cf. Matter of the Mendoza Prisons. Provisional measures. Order of the Inter-American Court of Human Rights
of November 26, 2010, considerandum 52.
360
Cf. Case of the Miguel Castro Castro Prison v. Peru, supra, para. 216, and Case of Durand and Ugarte v.
Peru. Reparations and costs, supra, para. 68.
361
Cf. Case of Loayza Tamayo, supra, para. 46, and Case of J., supra, para. 374.
362
Cf. Informe Final de la Comisión de la Verdad y Reconciliación, Volume V, Chapter 2.22, p. 697 to 721.
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