Notwithstanding, the judge did not automatically
arrange for the competent judicial authorities to
investigate the complaints.
nor most of the physical torture (“bagging”,
“hooding” and low-voltage electric shocks) left
external signs of injury on the body;
7.3 The action of Court of Investigation N° 44
consisted in issuing various instructions for the
medical reports on the examinations carried out
during the period of incommunicado detention, as
well details of the examination conducted in prison,
to be entered in the record. In addition, two expert
appraisals were obtained on 28 July and 20
November 1992, respectively. The first was by the
forensic physician of the examining court and the
second by the official forensic expert of Court of
Investigation N° 2.
– With regard to the dating of the various
bruises, the complainant adduced the theory put
forward by the first expert, defining two of them
as between two and six days old, while the other
two were said to be more recent. The fact that
the bruises had not been detected earlier could
have been due to a defective physical
examination or to the poor light;
– With regard to the value of the victim’s
testimony considering the lack of objective
evidence, reference was made to the case law of
the Supreme Court, according to which account
should be taken of the absence of reasonable
doubt,
verisimilitude
corroborated
by
circumstantial evidence, and consistency in the
charges. Furthermore, in the course of the police
raid on 29 January 1992 many detainees
complained of ill-treatment to the forensic
physician and the examining magis-trate. The
complainant therefore called for statements to be
taken from the person with whom she had
shared a cell while in detention, as well as from
the officers on guard.
7.4 The author indicated that the forensic reports
made available by Court of Investigation N° 2 did
not include the one for 31 January 1992, which is not
to be found in the record and has therefore not been
appraised by the experts. The judicial proceedings
also failed to determine the exact time of the prison
medical examination on 3 February, although the
certificate sent by the penitentiary centre to the
author’s counsel suggests that it took place in the
morning.
7.5 The order definitively shelving the
proceedings states that “it is necessary to establish,
on the one hand, the impossibility of furnishing
proof of any of the acts of aggression recounted by
the complainant, i.e., blows to the head, the placing
of a plastic bag over the head, kicks to the genitals,
hair-pulling and loss of consciousness, since they
were not confirmed in any medical examination and
yet should have left some kind of palpable injury,
according to the forensic medical report, and, on the
other hand, the existence of other injuries as
described for the first time in the medical report of 3
February”. It also indicates that it is not possible to
reach any conclusion regarding whether the cause of
the injuries described “was accidental, intentional or
self-inflicted, since the three possibilities are
compatible with the objective findings, and the
statement of the complainant, which constitutes the
other source of information, is not supported by the
chronology of the injuries established by the existing
medical reports. In view of the impossibility of
establishing the cause of the injuries, no offence can
be said to have been committed and the proceedings
must therefore be shelved”.
7.7 On 5 September 1995 the Provincial High
Court dismissed the appeal. On 28 September 1995
the author made an application for amparo to the
Constitutional Court as she considered that the
Provincial High Court’s decision violated articles 15
(right to physical and moral integrity) and 24 (right
to the protection of the courts) of the Constitution,
the latter on the ground of failure to allow the
submission of evidence proposed by the author,
namely, a statement by the prison doctor who noted
the injuries and statements by the members of the
Guardia Civil responsible for custody.
7.8 On 29 January 1996, the Constitutional Court
rejected the application for amparo, holding that
“the right to bring an action at law does not in turn
imply an absolute right to the institution and full
conduct of a criminal proceeding, but entails only
the right to a reasoned judicial decision on the claims
made, which may well be to stay or dismiss the
proceedings or, indeed, to declare the complaint
inadmissible”.
Examination on the merits
7.6 This decision was challenged by appeal based,
among other things, on the following arguments:
8.1 The Committee has considered the
communication in the light of all the information
made available to it by the parties, in accordance
with article 22, paragraph 4, of the Convention.
– With regard to virtually all the acts of
aggression described by the author (blows to the
head, kicks to the genitals, hair-pulling and loss
of consciousness), it was argued that these
involved the use of methods intended to leave no
physical marks on the victim. Neither the
alleged forms of psychological or sexual torture,
8.2 The Committee observes that, under article 12
of the Convention, the authorities have the
obligation to proceed to an investigation ex officio,
wherever there are reasonable grounds to believe
41
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