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(taking into account the pattern of behavior of the repressive State or the time elapsed
between the disappearance and the judicial analysis of this fact) and therefore, such
assumption produces full legal effects, the court would be, strictly speaking, sustaining
that the disappearance has ended and instead, another situation and another violation
have arisen: arbitrary deprivation of life. Then, the court would enter into the analysis
of both violations, successive, and the consequences thereof.
20. The issue seems to have been solved – I do not know if for ever or for the
moment- in favor of the idea that the forced disappearance entails an infringement of
the right to protection of life taking into account that such disappearance may lead to
death. This point of view puts the idea of risk in the center of the scene. In order to
assume that death is the ultimate data of the disappearance, the analyst notes, as I
said a pattern followed in many cases of disappearance, the context in which this
occurs and the possibility of assuming, in time, that the individual deprived of liberty
has finally lost his or her life. Therefore, an uncertain fact, not proven but probable, is
added to the unequivocal precept of disappearance: the risk of violation of another
legal interest, though this violation has still not been committed (and not even tried,
perhaps).
21. In line with these considerations, it can be mentioned that the State responsible
for the disappearance has violated the duty to ensure the right to life. This obligation
implies the adoption – what has not happened- of all the measures necessary to
protect such right and avoid putting it at risk. Under the same or very similar
reasoning, can we bring up other violations, very different and distant, bearing in mind
that the facts prove, in the case of the missing person, that the State has neither
taken the necessary measures to ensure the individual the exercise of such other
rights to which I referred, including but not limited to, in the previous paragraphs?
22. The judgment to which this opinion refers introduces a relevant novelty. In fact, it
considers that the forced disappearance violates the right to juridical personality,
embodied in chapter 3 of the American Convention. This statement of the judgment
also entails questions that I mention herein. Upon considering that there is violation of
this precept (not in the specific case and for the circumstances of the case, which may
be sufficient to prove that other violation, but in any hypothesis of forced
disappearance, per se), the Court agrees with the approach that have put forward, for
quite some time, some parties to the cases before the Inter-American system.
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