to infer that it was internationally responsible for the supposed enforced disappearance of Jeremías
Osorio Rivera, it had not failed to comply with the obligation established in Article I of the InterAmerican Convention on Forced Disappearance, because it had not perpetrated, permitted or
tolerated the supposed enforced disappearance of Jeremías Osorio Rivera. Furthermore, the State
indicated that it could not be attributed with his possible removal from legal protection or the
denial of his existence in order to place him in a legal limbo, because violation of the right to
juridical personality is a consequence of responsibility for an enforced disappearance, a relationship
of cause and effect that is absent in this case. The State affirmed that the purpose of the
Certificate of Absence due to Enforced Disappearance is to prevent the members of Mr. Osorio
Rivera’s family from finding themselves in an uncertain legal situation with regard to his factual
absence. Based on the foregoing, the State asked the Court to declare that it had not violated the
right to recognition of juridical personality established in Article 3 of the American Convention, in
relation to the obligations contained in Article 1(1) of this treaty, to the detriment of Jeremías
Osorio Rivera.
B.2.
Considerations of the Court
165. The analysis of a possible enforced disappearance should not focus merely on the detention,
or the possible torture, or the risk of loss of life, from an isolated, divided and fragmented
perspective, but rather the focus should be on all the facts that are present in the case that the
Court is considering, taking into account the Court’s case law when interpreting the American
Convention. 279
166. Two different positions have been presented as to how the Court should analyze the
possible violation of Article 7 of the American Convention. On the one hand, the Commission and
the representatives considered that, since the detention was the first stage in an enforced
disappearance, it was unnecessary to make a detailed analysis of Article 7 and, on the same basis,
the detention should be considered “illegal and arbitrary.” On the other hand, the State argued that
it acted in accordance with the laws in force when it detained Jeremías Osorio Rivera in flagranti. In
this regard, there is a dispute as to whether the detention was an isolated event because he was in
flagrante delicto or whether it responded to the objectives of the Palmira Plan of Operations.
167. The Court observes that, even though the initial detention was carried out in keeping with
the attributes of the military forces during the state of emergency in the province of Cajatambo
(supra para. 123), the deprivation of liberty of Mr. Osorio Rivera by members of the Army was a
step prior to his disappearance. In the Court’s opinion, the transfer of Mr. Osorio Rivera, deprived
of liberty, to the Cajatambo Counter-subversive Base without being brought before the competent
authority (supra para. 124) or his entry into the Base being registered evidently constituted an
abuse of power that, under no concept, can be understood as the exercise of military activities to
ensure national security and maintain public order on national territory, because the purpose was
not to bring him before a judge or other competent authority and to make him available to them,
but to execute him or make him disappear. Consequently, the State is responsible for the violation
of Article 7 of the American Convention, in relation to Article 1(1) of this instrument, to the
detriment of Jeremías Osorio Rivera.
168. Thus, the disappearance of Mr. Osorio Rivera is not only contrary to the right to personal
liberty, but also took place in the context of a pattern of selective enforced disappearances (supra
para. 155), which leads to the conclusion that it placed him in a serious situation of vulnerability
279
Cf. Case of Heliodoro Portugal v. Panama, supra, para. 112, and Case of Gudiel Álvarez et al. (“Diario Militar”) v.
Guatemala, supra, para. 196.
61
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