33
person's human rights is possible for the very reason that the latter is held outside of the law and deprived
of their juridical personality. Accordingly, and bearing in mind, moreover, the continuous nature of this
crime, the Commission considers that in the case of forced disappearance it is not possible to establish
that extinction of juridical personality because it is impossible to determine whether or not the person is
still alive. Therefore, one of the multiple rights abridged by forced disappearance is the right of victims of
this practice to recognition of their juridical personality. Furthermore, the Commission finds that the
mechanism through which violation of all the other rights infringed by forced disappearance is sought and
achieved is precisely deprivation of juridical personality.
183.
The violation of the right to legal personality that comes with forced disappearance is
such that several states in the region have had to adopt specific laws to distinguish this phenomenon
from extrajudicial execution. The State prevents living persons from exercising their rights and
149
obligations because the State denies their final fate. .
184.
In this regard, the Court has recognized that
… forced disappearance also leads to a violation of the right to recognition of juridical personality
established in Article 3 of the American Convention, given that forced disappearance seeks not
only one of the most serious ways of removing a person from the whole sphere of the legal system,
but also denies his existence and leaves him in a sort of limbo or situation of juridical uncertainty
before society and the State150, especially when his identity has been altered illegally. 151
185.
In the instant case, the disappearance of José Adrián Rochac Hernández, Santos
Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla, and Ricardo Ayala Abarca was
aimed at depriving them of their juridical personality, thus leaving them outside of the legal and
institutional order. In effect, in the context in which their disappearances occurred, they were the means
by which their perpetrators sought impunity for their actions, guaranteed by the impossibility of the victims
and their family members from seeking judicial protection in the face of the constant and systematic
absence of any investigation related to their whereabouts, for this information was denied and/or distorted
by the authorities. In this regard, the Commission has established that:
The objective of those who perpetrate a disappearance is to operate beyond the margins of the law,
to conceal all evidence of their crimes, and to escape any sanction. When a disappearance is carried
out, the fundamental protections established by law are circumvented and the victim is left
defenseless. For the victim, the consequence of an enforced disappearance is to be denied every
essential right deemed to inhere in the very fact of being human. In this way, the act of enforced
disappearance violates the right of the individual under Article 3 of the American Convention “to
152
recognition as a person before the law.”
186.
In view of the foregoing considerations, the Commission concludes that the State of El
Salvador violated the rights to personal liberty, humane treatment, life, and recognition of juridical
…continuación
November 22, 2005. Series C No. 136, par. 92; and Velásquez Rodríguez Case, Judgment of July 29, 1988, Series C No. 4, par.
155.
149
For example, in the case of detainees-disappeared persons who remain alive the State denies the right of access to a
judge if they are in detention, and in the case of detainees-disappeared persons who had been executed it denies the consequential
rights of the deceased persons’ next of kin, such as, rights of inheritance, for instance, which are obstructed by the indeterminate
legal status of the detainee-disappeared person.
150
I/A Court H.R., Case of Contreras et al. v. El Salvador. Merits, Reparations, and Costs. Judgment of August 31, 2011
Series C No. 232, para. 88. See Case of Anzualdo Castro, supra note 109, para. 90; Case of Gomes Lund et al. (Guerrilha do
Araguaia), supra note 97, para. 122, and Case of Ibsen Cárdenas and Ibsen Peña, supra note 100, para. 98.
151
I/A Court H.R., Case of Contreras et al. v. El Salvador. Merits, Reparations, and Costs. Judgment of August 31, 2011
Series C No. 232, para. 88.
152
See IACHR, Report No. 11/98, Case 10,606, Samuel de la Cruz Gómez, Guatemala, April 7, 1998, para. 57, available
at http://www.cidh.oas.org/annualrep/97span/Guatemala10.606.htmNota.