125
the victims are in a enclosed space and controlled exclusively by agents of the State and it
is the State which has control over all the probative means to clarify the facts.
Consequently, any allegation regarding difficulty or impossibility of establishing the identity
of those responsible should be strictly and rigorously scrutinized. 397
348.
Specifically, the IACHR has found that the State cannot justify breaching
its duty to open an investigation in response to complaints of torture based on the fact that
the victims did not individually identify the perpetrators of the act, particularly, in cases
where the victims remain under the custody of the very same agents of the State. In this
type of situation, the State should take the necessary measures so the victims may provide
their statements in secure conditions. The authorities in charge of the investigation should
explore all means available to them in order to establish the facts, including assessing
whether the victims may be unwilling to provide the requested information out of fear. In
short, the State should provide the necessary means to eliminate any source of risk to
victims as a consequence of their complaints and to overcome obstacles to continuing the
398
investigation.
349.
In its role as guarantor, the State has the responsibility both of ensuring
the rights of the individual under its custody, and of providing information and evidence
pertaining to what happened to these individuals. 399 In these circumstances, the burden of
proof is on the State. 400 Concretely, the State must provide a satisfactory explanation of
what happened to the person who presented normal physical conditions and, while under
the custody of authorities, his or her conditions became abnormal. 401 In the absence of
such an explanation, State responsibility for what has happened to these people under its
custody should be presumed. 402 Consequently, the State is considered presumptively as
responsible for the injuries exhibited by a person who has been under custody of State
agents. 403
350.
There is no conflict between the State’s obligation to investigate and
punish those responsible for human rights violations and the right to a fair trial of the
397
IACHR, Report No. 55/97, Case 11.137, Merits, Juan Carlos Abella, Argentina, November 18, 1997,
para. 394.
398
IACHR, Report No. 172/10, Case 12.651, Merits, César Alberto Mendoza et al., Argentina, November
2, 2010, para. 311.
399
I/A Court H. R., Case of Juan Humberto Sánchez V. Honduras. Judgment of June 7, 2003. Series C No.
99, para. 111.
400
I/A Court H.R., Case of Neira Alegría et al. V. Peru. Judgment of January 19, 1995. Series C No. 20,
para. 65; IACHR, Report No. 1/97, Case 10,258, Merits, Manuel García Franco, Ecuador, February 18, 1998,
paras. 63 and 68.
401
I/A Court H. R., Case of Bulacio V. Argentina. Judgment of September 18, 2003. Series C No. 100,
para. 127.
402
I/A Court H.R., Provisional Measures, Matter of Urso Branco Prison regarding Brazil, Order of the
Inter‐American Court of Human Rights of June 18, 2002, Whereas, para. 8.
403
I/A Court H.R., Case of Cabrera‐García and Montiel‐Flores V. Mexico. Preliminary Objection, Merits,
Reparations, and Costs. Judgment of November 26, 2010. Series C No. 220, para. 134.
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