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on direct guilt and, in this regard, even in the most favorable hypothesis for the superiors, the
said injuries were not absorbed by any crime they might have committed that required violence.
302. Regarding the State’s conduct, the Court has no information that, at this time, any
investigation is underway or completed to determine the command responsibility of the superiors
in charge of the operation, over and above the criminal action against the Deputy Director for
Operations of the southern region of the state Security Agency that is currently underway (supra
para. 143). Although the State argued that the command responsibility had been duly analyzed
and discarded by the SCJN during its investigation into the events of May 3 and 4, the Court
considers that the said investigation was not sufficient to comply with the obligation to investigate
all those responsible. This is because it was not a jurisdictional procedure with the ability to
determine criminal responsibilities and the judgment itself established the need to continue
investigating those possibly responsible. 410 In addition, although the SCJN ruled out the existence
of sufficient evidence of express orders by the authorities to attack those present, this Court
notes that: (i) responsibility for the crime of torture may arise not only from the issue of orders,
but also, as mentioned above, by instigation, incitement, or when, being in a position to prevent
it, this is not done; (ii) the orders may be implicit rather than explicit, 411 and (iii) the instructions
may not necessarily be criminal in themselves; rather, it is sufficient that there is a substantial
probability that crimes are committed in the execution of the instruction. 412 None of these
circumstances were ruled out by the SCJN.
303. Furthermore, the State did not initiate any investigation into the possible responsibility by
intention of the authorities owing to their conduct following the events. The subsequent
declarations affirming that the victims’ complaints were false and were merely tactical inventions
of “members of the guerrilla” (supra paras. 73 and 74) provided sufficient evidence to open the
investigation of a possible offense against the administration of justice; in other words, of a
possible offense of concealment, and this arises from the SCJN’s observations.413 Evidently, only
one of these investigations was required, because if responsibility for the facts was found, then
the offense of concealment would be ruled out.
304. Therefore, in light of the fact that: (i) the investigations conducted by the State were limited
to the participation of state agents, when there was evidence of the participation of federal
agents, and (ii) no investigation was conducted into all the possible forms of individual
responsibility for the acts of torture that are established in the Inter-American Convention against
Torture, including command responsibility, despite the existence of evidence in this regard, the
Court finds that the State failed to investigate all the possible criminal responsibilities and did not
follow all the logical lines of investigation, thus failing to comply with its duty to investigate with
due diligence.414
To the contrary the SCJN indicated that the violence used was permitted, encouraged and endorsed (supra para.
125), and added that “it is reprehensible […] that, knowing the magnitude of the operation, measures were not taken to
prevent the perpetration of those conducts or to allow a record or testimony to be kept of what happened. For example,
the lack of foresight to include women police agents and measures to separate the women from the men when they had
been detained, and the lack of foresight to have video cameras or observers in the trucks.” SCJN judgment of February
12, 2009 (evidence file, folio 31200).
410
411
Cf. Expert opinion of Susana SáCouto (evidence file, folio 37130).
412
Cf. Expert opinion of Susana SáCouto (evidence file, folio 37129).
413
See footnote 247 of this judgment above.
In this regard, even though it has been verified that the State did not investigate the responsibility of the authorities
in charge of the operation based on their failure to take steps to prevent or to punish the acts of torture, the Court does
414