Proven Facts Statements rendered by the victims -
Throughout the domestic criminal proceedings, before the Inter-American Commission and before the Court, Messrs. Cabrera and Montiel rendered statements regarding the alleged acts of torture committed against them. The following statements were rendered: i) before the Agent of the Public Prosecutor’s Office in Arcelia, Guerrero;142 ii) before the Agent of the Federal Public Prosecutor’s Office in Coyuca de Catalán, Guerrero;143 iii) a preliminary statement made before the first instance Court in Mina, Guerrero;144 iv) first amplification of the preliminary statement before the Fifth District Court;145 v) second amplification of the preliminary statement before the Fifth District Court,146 and vi) the statements before the Inter-American Commission and the Inter-American Court. In these statements, Messrs. Cabrera and Mr. Montiel described the cruel, inhumane and degrading treatment or alleged acts of torture to which they were subjected during the days they remained under arrest.
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From an analysis of the statements rendered by Messrs. Cabrera and Montiel during the criminal proceedings, in general terms, there is a record of the following actions: i) pulling of the testicles; ii) electric shocks; iii) blows to different parts of the body, such as the shoulders, abdomen and head; iv) that they were blindfolded and bound; v) that they were placed forming a cross according to the sun’s location; vi) that they were blinded by a bright light; vii) that they were threatened with weapons; and viii) that Tehuacán soda was forced up their noses.147
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The Court notes that the domestic courts considered the testimonies of Messrs. Cabrera and Montiel to be inconsistent, and therefore challenged their value.148 However, the Court considers that the differences between each testimony rendered by Messrs. Cabrera and Montiel cannot be considered as contradictions that denote falsehood or lack of truthfulness in the testimony.149 In particular, the Court notes that, in the various statements made by Messrs. Cabrera and Montiel, the main circumstances are consistent. In this regard, this Court finds that, as the statements were amplified, the victims described more details concerning the alleged torture, but that the general framework of their account is consistent, starting with the statements given on May 7th, 1999, before the Court of First Instance. Therefore, in order to examine each of the alleged tortures reported by Messrs. Cabrera and Montiel in their statements, the Court will proceed to examine the medical certificates and expert opinions included in the case file.
1.2. Medical certificates in the case file
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The Court points out that in this case 14 medical certificates were issued regarding Messrs. Cabrera and Montiel on three occasions: at the beginning of the criminal investigation, during the criminal proceedings conducted against them and when they were released for humanitarian reasons. These certificates had three objectives: to certify their physical integrity, to verify their physical and mental condition for the application of the sentence and the compatibility between the age, health and physical state of Messrs. Cabrera and Montiel with the sentence imposed.
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Indeed, as part of the criminal proceedings conducted against the victims, certain military and civil officials issued medical certificates or reports on their physical condition. The Court notes the following certificates: a) certificate of May 4, 1999, issued by an assistant military surgeon, attached to the Regional Military Hospital of Chilpancingo, Guerrero150 and a medical examiner of the Judicial District in Arcelia, Guerrero;151 b) certificate of May 6, 1999, issued by a forensic physician attached to the Mina Judicial District, who resides in Coyuca de Catalán, Guerrero;152 c) record of May 15, 1999, issued by an inspector from the Commission for the Defense of Human Rights in Guerrero (Coddehum),153 and d) a certificate of June 4, 1999, issued by a medical expert from the CNDH who visited the Social Welfare Center in Coyuca de Catalán, Guerrero.154
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During the criminal proceeding in which Messrs. Cabrera and Montiel were convicted, three (3) certificates regarding their health condition were issued: a) on September 23, 1999, by a medical expert from the CNDH regarding Mr. Montiel Flores;155 b) on May 19, 2000, by a medical expert from the CNDH,156 and c) on July 6, 2000, by a medical expert from the CNDH for Mr. Montiel Flores.157
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Finally, based on “the provisions of Article 18 of the Political Constitution […] 75 and 77 of the Federal Criminal Code, 26 and 30 […] of the Organic Law of the Federal Administration [and] the Internal Rules of the Secretariat for Public Security,”158 on October 7, 2001, when Messrs. Cabrera and Montiel were still serving their sentence at the Prevention and Social Re-adaptation Center, a physician from the Center’s Medical Service carried out one (1) further examination on each one and concluded that their respective penalties were incompatible with their state of health.159 Based on the results of that examination, on November 8, 2001, the Federal Executive, by way of the General Directorate of Social Welfare and Rehabilitation, released Messrs. Cabrera160 and Montiel.161
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In relation to the foregoing, it should be noted that expert witness Gutiérrez Hernández indicated, in her opinion rendered at the public hearing in this case, that:
“when […] a person or persons [are] arrested, the Public Prosecutor’s Office […] issues a request for a certification of physical integrity or injuries; in this regard, the doctor must examine the person and describe what he finds in terms of injuries.” “However, if an accusation of torture is made in a statement by these persons, or any other, the Public Prosecutor’s Office [...] then specifically requests and inquiry into the injuries present, but with a focus on the medical-legal documentation and this is when the guidelines set by the international standards to document torture must be complied with. To summarize, the fifteen medical certificates were prepared only for the purpose of certifying the physical integrity [of the victims] and not to document torture.”162
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The above expert opinion coincides with the point made by the State itself, according to which there is a difference with “[a]nother type of intervention carried out by a forensic physician in Mexico, […] regarding the expert determination of physical torture, whose investigation and documentation guidelines are established in Agreement A/057/2003, in force since September 2003, following the Contextualization of the Istanbul Protocol […] in the country. This medical intervention, like all others undertaken by forensic physicians, requires an express written request by a judicial and/or ministerial authority and certain conditions for its application.”
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Therefore, the Court concludes that, given their purpose, the 14 medical certificates mentioned are not sufficient, by themselves, to provide grounds for rejecting or accepting the allegations of torture in this case. However, with regard to the possible violation of the right to humane treatment [personal integrity], the Court highlights certain medical certificates, such as the one issued on May 15, 1999, which reported the presence of bruises that allegedly resulted from the blows received by Messrs. Cabrera and Montiel during their detention163 or the certificate issued on June 4, 1999, which concluded that the injuries had occurred approximately 30 days earlier.164
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