Article 5 Right to Humane Treatment
Although the Court considered that all of the acts of torture and cruel treatment that persons are submitted to are of a serious nature, it found that it is particularly serious when there are women involved, given that the effects of the torture can have different consequences. The Court considered the cases of pregnant women who were interned and found that they had suffered particularly serious violations of their fundamental rights. The Court held that forcing pregnant women to lie face down on their stomachs, to constantly mistreatment them both physically and mentally directly impacted their sexuality and motherhood. The Court took this into consideration in awarding greater damages as reparation for the suffering caused by the State.
The Court also found that the forced nudity to which the detained women were subjected was a violation of the personal dignity of the victims and constituted sexual violence in and of itself. The women were forced to remain naked when they were transferred to public hospitals and were permanently guarded and observed by male guards.
The Court followed international jurisprudence and the Belem do Para Convention in finding that sexual violence includes acts of a sexual nature which may or may not include penetration or physical contact of any kind. In this specific case, one of the detained women was subjected to a vaginal examination during which she was penetrated by the doctor’s fingers. The Court found that the act constituted rape and that this could be defined as acts of vaginal or anal penetration, without the consent of the victim, with the body of the aggressor or with objects, or equally forced oral penetration with the penis of the aggressor. The Court found that the act also constituted torture.
With regards to violations of humane treatment proceeding from the conditions in detention previous to the attack, the Court highlighted the injury and suffering experienced generally by the women and in particular, the pregnant women. The Court found that the incommunicado detention of the women was a form of torture, which had differing impacts on the women, since many of the women who were interned were mothers who were not able to communicate with their young children. The Court also noted the negative effect that this had on babies and young children who were separated from their mothers.
The Court also noted that additional suffering was caused to the women in detention since their physiological needs were not taken into consideration. The Court noted that under international standards, detained women must be provided with the medical attention when pregnant and have their basic post and pre natal care provided. Furthermore, facilities, services and materials must be available for women with young children or for women who are menstruating.
Article 8.1 Fair Trial and Article 25 Judicial Protection
The Court found that the time delay between the facts and the beginning of the criminal investigation was unreasonable given the obligation on States to fight impunity especially when violations of fundamental rights are perpetrated by State agents. The lack of investigation therefore constituted a violation of right of access to justice of the victims and their families.
The Court found that the violation of the right of access to justice and due process was of extraordinary magnitude in this case given that the massacre and the tortures were committed by State agents as crimes against humanity, for which States have specific obligations to end impunity and ensure accountability.
The Court unanimously found that :
1. The State should effectively investigate the facts and identify and punish those responsible.
2. The State should adopt the necessary measures to ensure that all the detainees who were killed in the attack are identified and that their remains are delivered to their families.
3. The State should carry out an act in public to acknowledge their responsibility for the violations.
4. The State should design and implement education programmes on human rights for State agents and security forces, using international legal standards applicable on the treatment of detained persons.
5. Within 18 months, the State of Peru should provide the Court with a report on all of the measures adopted to comply with the decision.