the act of disappearance and its execution begin with the deprivation of liberty of the person
and the subsequent absence of information on their whereabouts, and remain while the
whereabouts of the disappeared person is not known or until their remains are identified with
certainty (infra note 55). The Court developed this characterization of forced disappearance
even before the definition included in the Inter-American Convention on Forced Disappearance
of Persons. 54
51.
Second, the Court also considers inadmissible the State’s argument that the presumed
forced disappearance of Mr. González Medina had ceased before its acceptance of the Court’s
jurisdiction, because, according to this Court’s consistent case law, the relevant factor to
terminate a forced disappearance is the determination of the whereabouts of the person, or the
identification of their remains, and not the presumption of death. 55 The Court has applied the
presumption of death in cases of forced disappearance when the passage of time or other
relevant circumstances allow it to be presumed that there has been a violation of the right to
life, 56 but this is in no way equivalent to establishing the whereabouts of the victim or finding
his remains. In this regard, it should be recalled that the Court has indicated that “it would
be inadmissible that the party on whom the burden falls to disprove the presumption [of
death] uses this in order to exclude or limit the Court’s competence with regard to certain
facts of a case of forced disappearance in advance by a preliminary objection.” 57
52.
Regarding two of this Court’s judgments that the Dominican Republic cites in support
of its arguments, the Court notes that the State makes an inappropriate interpretation of
the Court’s decisions and their effects for this case. The particularity of the judgment in the
case of the Serrano Cruz Sisters v. El Salvador is that the Court ruled on a preliminary
objection based on a temporal limitation introduced by the said State when accepting this
Court’s jurisdiction. 58 In contrast, the Dominican Republic did not establish a temporal
limitation when accepting the Court’s jurisdiction. Regarding the judgment in the case of
Heliodoro Portugal v. Panama, when deciding on its competence ratione temporis, the Court
understood that the disappearance ended with the identification of his remains, 59 but not on
has also considered the permanent or nature of the forced disappearance of persons in the following case: Cyprus
v. Turkey [GC], No. 25781/94, paras. 136, 150 and 158, 2001-IV.
54
Article II of this Convention establishes that “forced disappearance is considered to be the act of depriving
a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or
groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of
information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of
that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.
55
Cf. inter alia, Case of Velásquez Rodríguez v. Honduras. Merits, supra note 18, para. 155, Case of Chitay
Nech et al. v. Guatemala, supra note 52, paras. 81 and 87; Case of Ibsen Cárdenas and Ibsen Peña v. Bolivia,
supra note 49, paras. 59, 60 and 82; Case of Radilla Pacheco v. Mexico, supra note 50, para. 23, and Case of
Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil, supra note 53, para. 17.
56
Cf. Case of Neira Alegría et al. v. Peru. Merits. Judgment of January 19, 1995. Series C No. 20, para. 76;
Case of Caballero Delgado and Santana. Merits. Judgment of December 8, 1995. Series C No. 22, para. 56; Case of
Blake, Preliminary objection, supra note 49, para. 39, and Case of Bámaca Velásquez v. Guatemala. Merits.
Judgment of November 25, 2000. Series C No. 70, para. 72.
57
Case of Radilla Pacheco v. Mexico, supra note 50, paras. 47 and 48.
58
The purpose of the temporal limitation imposed by El Salvador was to eliminate from the Court’s
jurisdiction the facts or acts prior to the date on which it deposited the declaration accepting the Court’s
jurisdiction, as well as the acts and effects of a continuing and permanent violation that started prior to this
acceptance. Case of the Serrano Cruz Sisters v. El Salvador. Preliminary objections, supra note 28, para. 72.
59
The factor, in that particular case, that the remains had been identified and allowed it to be presumed that
the death had occurred before the date of acceptance of the Court’s jurisdiction led the Court to declare itself
incompetent to rule on the alleged extrajudicial execution of Mr. Portugal in relation to the violation of the right to
life and on the alleged acts of torture and ill-treatment. Cf. Case of Heliodoro Portugal v. Panama. Preliminary
objections, merits, reparations and costs. Judgment of August 12, 2008. Series C No. 186, paras. 32 and 35.
19
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