20
57.
The representatives, moreover, agreed with this argument of the Commission.
They alleged that this “limbo” regarding the legal condition of the individual occurs by
means of the forced disappearance as a result of the uncertainty about the life or
death of the victim and that these effects are produced on third parties, for example,
in inheritance issues, property and labor rights. They recalled that in Peru there is a
law that governs the possibility of requesting the declaration of absence by forced
disappearance, in order to “provide the next-of-kin of the disappeared person […] the
necessary instruments to have access to the recognition of their rights",56 by means
of the legal declaration of disappearance, which has the same effects that the legal
declaration of presumption of death. This domestic procedure confirms such “legal
limbo.”
58.
Finally, the Commission and the representatives alleged that the State is
responsible for the violation of the right to humane treatment of the next-of-kin of
Mr. Anzualdo Castro, as a direct consequence of the illegal and arbitrary deprivation
of liberty of the victim and the disregard for and uncertainty about his whereabouts,
coupled with the lack of results of the steps taken by the next-of-kin, the lack of a
diligent investigation, prosecution and punishment of the perpetrators and instigators
of the disappearance. The representatives alleged that the next-of-kin must be
considered victims of cruel, inhumane and degrading treatment. The State did not
present arguments in this regard, though in the final arguments, in order to debate
the requests for reparations, it indicated that “there is no causal link” between the
disappearance and the onset of the cancer illness of Mrs. Isabel Castro Cachay de
Anzualdo.”
*
*
*
59.
The Court has verified the strengthening of a perception of the international
community and, in particular, the Inter-American system, that recognizes the gravity
and the continuing or permanent and autonomous nature of the crime of forced
disappearance of persons. In its constant case-law on this type of cases, the Court
has reiterated that the forced disappearance of persons constitutes a multiple
violation of several rights protected by the American Convention and that it places
the victim in a state of complete defenselessness, giving rise to other related
violations, particularly serious when framed within a systematic pattern or practice
applied or consented by the State. Therefore, it constitutes a serious human rights
violation, given the particular gravity of the offenses and the nature of the rights
infringed,57 which involves a flagrant disavowal of the essential principles on which
the inter-American system is based58 and the prohibition thereof has attained the
status of jus cogens.59
56
Section 2 of Act 28.413 of November 24, 2004.
57
CONSIDERING that the forced disappearance of persons violates numerous non-derogable and
essential human rights enshrined in the American Convention on Human Rights, in the American
Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights. InterAmerican Convention on Forced Disappearance of Persons, Preamble.
58
Cf. Case of the Serrano Cruz Sisters. Preliminary Objections. Judgment of November 23, 2004.
Series C No. 118, para. 100-106; and Case of Heliodoro Portugal V. Panamá. Preliminary Objections,
Merits, Reparations and Costs. Judgment of August 12, 2008. Series C No. 186, para. 118 and Case of La
Cantuta V. Peru. Merits, Reparations and Costs. Judgment of November 29, 2006. Series C No. 162, para.
115.
59
Cf. Case of Goiburú el al V. Paraguay. Merits, Reparations and Costs. Judgment of September 22,
2006. Series C No. 153, para. 84; Case of Tiu Tojín V. Guatemala. Merits, Reparations and Costs.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents