17
keep committing that violation at every moment. Therefore, when analyzing a case
of forced disappearance, it should be noted that the deprivation of liberty must only
be understood as the constitution of a complex violation that continues in time until
the fate and whereabouts of the alleged victim is known. Based on the foregoing, it
is necessary then to consider in full the forced disappearance as an autonomous and
continuous or permanent crime, with multiple and intricately interconnected
elements. As a consequence, the analysis of a possible forced disappearance should
not be approached in an isolated, divided and segmented way, based only on the
detention or possible torture or risk to lose one’s life, but on the set of facts presented
in the case brought to the Court’s attention, taking into account the case-law of the
Tribunal regarding the interpretation of the American Convention, as well as the InterAmerican Convention on Forced Disappearance of Persons for those State Parties that
ratified such treaty.”36
57.
Article 7 of the American Convention establishes that every person has the
right to personal liberty. In this sense, the Court has repeated that a restriction to
this right must be carried out only due to the causes and the conditions previously
established by the Political Constitutions or by the laws enacted pursuant to them
(material aspect), as well as strictly subject to the procedures objectively defined in
the same (formal aspect).”37
58.
Regarding Article 5 of the Convention, this Tribunal has mentioned that forced
disappearance violates the right to humane treatment since “the mere subjection of
an individual to prolonged isolation and deprivation of communication is in itself cruel
and inhuman treatment […] incompatible with paragraphs 1 and 2 of said Article.”38
It is clear that in the case of a forced disappearance, the victim’s personal integrity is
affected in all its dimensions.
59.
Furthermore, the Court has considered that the practice of forced
disappearance has often involved secret execution without trial, followed by
concealment of the body to eliminate any material evidence of the crime and to
ensure the impunity of those responsible.39 Furthermore, the Tribunal has held that
subjecting a person to official, repressive bodies that practice torture and
assassination with impunity is itself a breach of the duty to prevent violations of the
rights to life and physical integrity of the person, even if that particular person is not
tortured or assassinated, or if those facts cannot be proven in a concrete case.40
60.
Moreover, the Court observes that because of the same nature of the forced
disappearance, the victim is seriously vulnerable and in that condition, the risk of
having other rights violated appears, for example, the right to life as enshrined in
36
Cf. Case of Heliodoro Portugal v. Panamá, supra note 13, para. 112.
Cf. Case of Gangaram Panday v. Surinam. Merits, reparations, and costs. Judgment of January
21, 1994. Series C Nº 16, para. 47; Case of García Asto and Ramirez Rojas v. Perú. Preliminary
Objections, Merits, reparations, and costs. Judgment of November 25, 2005. Series C Nº 137 para. 105;
and Case of Servellón García et al. v. Honduras. Merits, reparations, and costs. Judgment of September
21, 2006. Series C Nº 152, para. 89.
38
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra note 16, para. 156 and 187; Case of
Miguel Castro Castro Prison v. Perú. Merits, reparations, and costs. Judgment of November 25, 2006.
Series C Nº 160, para. 323; and Case of Chaparro Alvarez and Lapo Iñiguez v. Ecuador. Preliminary
Objections, Merits, reparations, and costs. Judgment of November 21, 2007. Series C Nº. 170, para. 171.
39
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra note 16, para. 157; Case of the 19
Tradesmen v. Colombia. Merits, reparations, and costs. Judgment of July 5, 2004. Series C Nº. 109, para.
154; and Case of Gómez Palomino v. Perú, supra note 35, para. 103.
40
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra note 16, para. 175.
37