30
88.
This right represents a parameter to determine whether a person is entitled to
any given rights and whether such person can enforce such rights,106 therefore, the
failure to recognize or acknowledge such capability places the person in a vulnerable
position in relation to the State or third parties.107 In this way, the content of the right
to juridical personality refers to equivalent general duty of the State to provide the
means and general juridical conditions necessary to guarantee each person the free
and full enjoyment of the right to the recognition of his or her juridical personality.108
89.
However, pursuant to the principle of effectiveness and the need of protection
in those cases of people and groups in situation of vulnerability, this Tribunal has
observed the broader legal content of this right, by considering that the State “is
bound to guarantee to those persons in situations of vulnerability, exclusion and
discrimination, the legal and administrative conditions that may secure for them the
exercise of such right, pursuant to the principle of equality under the law.”109 For
example, in the case of the Sawhoyamaxa Indigenous Community, the Court
considered that it members “have remained in a legal limbo in which, though they
have been born and have died in Paraguay, their existence and identity were never
legally recognized, that is to say, they did not have personality before the law.”110
90.
Certainly, the case-law has developed the legal content of this right in those
cases involving human rights violations other than forced disappearance of people,
given the fact that in most of these cases, the Tribunal had believed that there were
no facts leading to the conclusion that the State violated Article 3 of the
Convention.111 Nevertheless, given the multiple and complex nature of this serious
human right violation, the Tribunal reconsiders its previous position and deems it is
possible that, in this type of cases, the forced disappearance may entail a specific
violation of said right: despite the fact that the disappeared person can no longer
exercise and enjoy other rights, and eventually all the rights to which he or she is
entitled, his or her disappearance is not only one of the most serious forms of placing
the person outside the protection of the law but it also entails to deny that person's
existence and to place him or her in a kind of limbo or uncertain legal situation before
the society, the State and even the international community.
91.
In this sense, the Court bears in mind that one of the characteristics of forced
disappearance, in contrast to extra-legal executions, is that it implies the State’s
refusal to acknowledge that the victim is under its custody and provide information in
106
Cf. Case of the Sawhoyamaxa Indigenous Community V. Paraguay, supra note 105 para. 188;
Case of the Saramaka People, supra note 105, para. 166.
107
Cf. Case of the Girls Yean and Bosico V. Dominican Republic, supra note 105, para. 179; Case of
the Saramaka People V. Suriname, supra note 105, para. 166 and Case of the Sawhoyamaxa Indigenous
Community V. Paraguay, supra note 105 para. 188.
108
Cf. Case of the Sawhoyamaxa Indigenous Community V. Paraguay, supra note 105 para. 189;
Case of the Saramaka People, supra note 105, para. 167.
109
Case of the Sawhoyamaxa Indigenous Community V. Paraguay, supra note 105 para. 189; Case
of the Saramaka People V. Suriname, supra note 105, para. 166.
110
111
Case of the Sawhoyamaxa Indigenous Community V. Paraguay, supra note 105 para. 192.
Cf. Case of Bámaca Velásquez V. Guatemala. Merits, supra note 42, para. 179-181; Case of La
Cantuta V. Peru, supra note 58, para. 121; and Case of Ticona Estrada et al. V. Bolivia, supra note 63,
para. 71. Moreover, in two cases, the Court declared the violation of Article 3 of the Convention based on
the State's acquiescence to the alleged violation of this provision. Cf. Case of Benavides Cevallos V.
Ecuador. Merits, Reparations and Costs. Judgment of June 19, 1998. Series C No. 38, para. 43; Case of
Trujillo Oroza V. Bolivia. Merits. Judgment of January 26, 2000. Series C No. 64, para 41.
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