while institutionalized in a public hospital where he had been admitted on January 10, 2004. They stated that
a week later the staff of said hospital informed the mother of Mr. Guachalá that he was missing. They stated
that despite the legal actions presented to that date, the whereabouts of Mr. Guachalá have not been
determined. The detail of the facts and the internal processes shall be referred to in the Commission’s factual
analysis, based on the information provided by both parties.
The petitioners argued that what happened to Mr. Guachalá constitutes a forced
disappearance because the three concurring elements which constitute it are present: i) deprivation of
freedom; ii) the direct intervention of agents of the state or their acquiescence; and iii) the refusal to
acknowledge the deprivation of freedom or to give information on the whereabouts of that person.
Consequently, the petitioners stated that the State violated their right to juridical personality, right to life, right
to humane treatment, and right to personal freedom.

In relation to the right to personal freedom, the petitioners stated that the confinement in a
psychiatric hospital is a restriction of this right. They stated that even though consent was initially granted for
the hospitalization of Mr. Guachalá, there was a systematic denial of his whereabouts to his mother, and this,
consequently, became a non-consensual and illegitimate denial of his freedom.

In relation to the alleged violation of the right to legal personality, the petitioners argue that
the forced disappearance of Mr. Guachalá resulted in a “juridical limbo” of his legal status. They argued that the
disappearance of Mr. Guachalá deprived him of his capacity to exercise his rights and have legal personality
before the State and society.

In relation to the alleged violation of the rights to life and humane treatment, the petitioners
stated that the State did not carry out any actions with the objective of clarifying what happened to Mr.
Guachalá. The petitioners stated that in this way the rights to life and humane treatment were not protected.
Also, they stated that this State omission, as well as the presumed escape of Mr. Guachalá, constituted a breach
of the specific and reinforced duty of care to institutionalized persons with disabilities. They alleged that given
the health condition of Mr. Guachalá the medical staff had the duty of vigilance.
In relation to the alleged violation of the rights to fair trial and judicial protection, the
petitioners explained that, despite the version of the State that Mr. Guachalá escaped from the hospital on
January 17, 2004, only two days later did they inform the police about it. The petitioners expressed that none
of the legal actions filed (criminal complaint, a complaint submitted before the Ombudsman, and a writ of
habeas corpus) clarified what happened with Mr. Guachalá or determined his whereabouts. They stated that
several authorities failed to adopt significant actions to locate Mr. Guachalá, therefore, the remedies were not
adequate or effective.

They added that to-date an investigation of the crime of forced disappearance has not been
started. They stated that this leads to the lack of clarification of the historic reality in relation to the facts that
permit the identification of the officials responsible for the victim’s situation. They asserted that currently the
State is investigating all the cases of disappearance of persons, including that of Mr. Guachalá, under an
administrative procedure. They stated that the administrative procedure to determine the whereabouts of Mr.
Guachalá remains active to date. They held that said procedure cannot be considered an ideal remedy because
the present case relates to a specific situation of the forced disappearance of a person that was under the
protection and custody of the State.
The petitioners also argued that the State failed its duty to adopt provisions of domestic
law. This, due to the inexistence of a norm that allows the demand of compliance of the resolution of the
Constitutional Tribunal in the context of the writ habeas corpus filed. They stated that the action of noncompliance with the judgments and constitutional opinions enshrined in the Law of Jurisdictional Guarantees
and Constitutional Control is not adequate or effective. This, because “to initiate an action before the same body
that issued the judgment would place a disproportionate burden on the victim.”

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