13.
The Court recalls that in the Judgment in this case, it was decided that 9: i) it
was necessary that the abovementioned facts are effectively investigated by ordinary
forums and jurisdiction in a proceeding conducted against the alleged perpetrators of
the offenses committed personal integrity; ii) the State shall effectively carry out the
criminal investigation into the facts of this case, especially into the allegations of
torture against Messrs. Cabrera and Montiel, in order to determine the corresponding
criminal responsibilities and, if it were the case, effectively apply the punishments and
consequences established by law; iii) this obligation shall be complied with within a
reasonable period of time, which includes due diligence in the investigation into the
different hypotheses of the reasons that would have given rise to the attacks against
personal integrity against Messrs. Cabrera and Montiel; iv) it is important that the
standards set forth in the Istanbul Protocol are used in order to strengthen the due
diligence, suitability and effectiveness of the respective investigation; and v) in the
event procedural and investigative irregularities related to the facts are proven while
under investigation, it will be appropriate to adopt the pertinent disciplinary,
administrative or criminal actions.
14.
In view of the information provided by the State, the Court appreciates the
efforts carried out by the State in the context of the preliminary investigation
conducted by the Office of the Prosecutor General. Furthermore, the Court highlights
the diligences carried out by the State to comply with the Istanbul Protocol by
requiring, in accordance with the latter, a medical-psychological evaluation of the
victims in order to determine whether or not they suffered torture. Nevertheless, as
indicated by the information offered by the parties, this Court finds that in the more
than two years since the preliminary investigation began, there has been few judicial
proceedings aimed at determining the alleged perpetrators of the facts of this case.
15.
Taking into account the foregoing, the Court emphasizes that approximately 13
years have elapsed since Messrs. Cabrera García and Montiel Flores were arrested and
subjected to cruel, inhumane, and degrading treatment. Therefore, it urges the State
to complete, within a reasonable period of time, the pending diligences in the
preliminary investigation. In this sense, the Court reiterates that the passing of time
holds a direct proportional relationship with the limitation –and in some cases, the
impossibility- to obtain the evidence and/or testimonies, making the execution of
evidentiary diligences with the objective of clarifying the facts of the investigation, the
identification of the possible perpetrators and participants, and the determination of
the possible criminal responsibilities difficult or even null or ineffective. Without
detriment to the foregoing, the national authorities are not exempt from making all
efforts necessary in complying with their obligation to investigate. 10
16.
Moreover, the Court holds that the State did not provide information regarding
the decision that “in the event procedural and investigative irregularities related to the
facts are proven while under investigation, it will be appropriate to adopt the pertinent
disciplinary, administrative or criminal actions.” Thus, the Court does not have
evidence to assess the progress towards compliance with this point.
9
Cf. Case of Cabrera García and Montiel Flores V. M��xico. Preliminary Objection, Merits, Reparations
and Costs. Judgment of November 26, 2010. Series C No. 220, para. 215.
10
Cf. Case of Heliodoro Portugal V. Panamá. Preliminary Objections, Merits, Reparations and Costs.
Judgment of August 12, 2008. Series C No. 186, para. 150, and Case of Radilla Pacheco V. México.
Preliminary Objections, Merits, Reparations and Costs. Judgment of November 23, 2009. Series C No. 209,
para. 215.
7