In Loayza Tamayo vs. Perú, when analyzing the alleged violation of article 5 of the American Convention – the right to humane treatment – the ICtHR found that the arguments and evidence presented, coupled with the state’s inability to invalidate the latter, were sufficient to prove the cruel, inhumane and degrading treatment María Elena had suffered while detained, except for the rape. In the Court’s account, “given the nature of this fact, the accusation could not be substantiated”. At the same time, there was no more strong evidence of the other violations experienced by María Elena than there was of her rape, and yet, the Court not only dismissed this latter allegation but also left unexplained what should be understood by the expression “given the nature of the fact”.
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