81
(supra para. 179). In other words, the body of Gladys Espinoza, as a woman, was used in order
to obtain information from her partner and to humiliate and intimidate both of them. These acts
confirm that the State agents used sexual violence and the threat of sexual violence against
Gladys Carol Espinoza Gonzáles as a strategy in the fight against the said subversive group.
Consequently, the Court decides that subjecting Ms. Espinoza to this generalized practice
constituted discrimination owing to her condition as a woman, in violation of Article 1(1) of the
American Convention to her detriment, in relation to the rights to personal integrity and to honor
and dignity established in Articles 5(1), 5(2) and 11 of this instrument, and to the obligations
established in Articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture.
VIII.4. RIGHTS TO JUDICIAL GUARANTEES AND TO JUDICIAL PROTECTION
230. In this chapter, the Court will examine the alleged violation of the rights to judicial
guarantees 386 and to judicial protection 387 to the detriment of Gladys Espinoza, due to the
supposed failure of the State to conduct a diligent investigation into the acts of torture and
cruel, inhuman and degrading treatment of which she was a victim in 1993 on the premises of
the DIVISE and the DINCOTE, and in 1999 in the Yanamayo Prison.
A)
Arguments of the Commission and of the parties
231. The Commission argued that the absence of an investigation into the torture and cruel
and inhuman treatments suffered by Gladys Espinoza and the impunity in which the facts
remain, despite the State’s awareness of them, constitute a violation of Articles 8(1) and 25(1)
of the American Convention, and of Articles 1, 6 and 8 of the ICPPT. In addition, the Commission
asserted that the medical examinations performed on the presumed victim in 1993 “were not
aimed at establishing the possible causes of the bodily injuries found on the victim.” 388
Furthermore, it underscored that the conclusions of the National Terrorism Chamber and of the
Supreme Court of Justice that disputed the occurrence of torture in this case did not constitute
“a criminal investigation designed to cast light on the acts of violence against Gladys Carol
Espinoza, to identify and punish those responsible, and to order the corresponding reparations.”
In its final oral observations, the Commission affirmed that the State had failed to comply with
its obligation to investigate for almost 20 years, because it was not until 2012 that it opened an
investigation into the facts. 389
232. The Commission also argued that the State was responsible for the violation of Article 7
of the Convention of Belém do Pará to the detriment of Gladys Espinoza, because the presumed
failure of the Peruvian authorities to investigate the complaints filed in her favor encouraged a
climate of impunity in this and other cases of torture, rape and other forms of violence against
386
Article 8(1) of the American Convention establishes that: “[e]very person has the right to a hearing, with due
guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by
law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights
and obligations of a civil, labor, fiscal, or any other nature.”
387
Article 25(1) of the American Convention stipulates that: “[e]veryone has the right to simple and prompt
recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his
fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such
violation may have been committed by persons acting in the course of their official duties.”
388
According to the Commission, they lack essential information; they were prepared by PNP officials when the
presumed victim was in the custody of agents of the same institution and, in some cases, “they did not even contain a
conclusion or diagnosis.”
389
In this regard, it affirmed that “the State must take into account the passage of time for the investigation to
be truly effective,” and that it must include the facts of this case, the adoption of all the necessary measures in order
to identify all those responsible, to avoid the re-victimization of Gladys Carol Espinoza, and to provide immediate
inter-disciplinary medical and psychological treatment immediately, taking into account the particularities of the harm
suffered in the context of the armed conflict.
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