29
85.
Without prejudice to the fact that the Court has considered that the practice of
disappearances often involves 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,102 the Tribunal has also 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.103 In addition, 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 [Article 5 of the Convention].”104
86.
In the instant case, Mr. Anzualdo Castro was abducted or deprived of his
liberty and taken to a secret detention center. Within said context of systematic
practice of forced disappearance, and given the modus operandi of the
disappearances at the time of the events, the coercive relocation of Mr. Anzualdo
Castro to the SIE basements and the subsequent incommunication to which he was
subjected, have certainly caused him strong feelings of fear, anguish and
defenselessness and it is reasonable to assume that state agents could have
subjected him to torture or cruel, inhumane and degrading treatment and, later on,
killed him. Based on the foregoing reasons, the State failed to comply with its duty to
ensure every subject to its jurisdiction the right not to have one’s life taken arbitrarily
and the right to humane treatment, which comprises the reasonable prevention of
situations that could result in the violation of these rights, specially in the practice of
forced disappearance. Therefore, the State is responsible for the violation of the right
to humane treatment and life of Mr. Anzualdo Castro.
*
*
*
87.
As to the alleged violation of Article 3 of the Convention (supra paras. 56 and
57) the Court has noted that the content itself of the right to juridical personality is
that every person has the right
To be recognized everywhere as a person having rights and obligations, and to enjoy the
basic civil rights [which] implies the capacity to be the holder of rights (capacity and
exercise) and obligations; the violation of this recognition presumes an absolute
disavowal of the possibility of being a holder of [the]h rights and obligations105.
102
Cf. Case of Velásquez Rodríguez V. Honduras. Merits, supra note 11, para. 157 and Case of
Ticona Estrada V. Bolivia, supra note 63, para. 59; and Case of Gómez Palomino, supra note 63, para.
103.
103
Cf. Case of Velásquez Rodríguez V. Honduras. Merits, supra note 11, para. 175 and Case of
Ticona Estrada V. Bolivia, supra note 63, para. 59.
104
Cf. Case of Velásquez Rodríguez V. Honduras. Merits, supra note 11, para. 156 and 187; and
Case of Ticona Estrada V. Bolivia, supra note 63, para. 58; 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.
105
Case of Bámaca Velásquez V. Guatemala. Merits, supra note 42, para. 179. Case of the Girls
Yean and Bosico V. Dominican Republican. Preliminary Objections, Merits, Reparations and Costs.
Judgment of September 8, 2005. Series C No. 130, para. 176; Case of the Saramaka People V. Suriname.
Preliminary Objections, Merits, Reparations and Costs. Judgment of November 28, 2007. Series C No. 172,
para. 166; and Case of Sawhoyamaxa Indigenous Community V. Paraguay. Merits, Reparations and Costs.
Judgment of March 29, 2006. Series C No. 146, para. 188.
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