19
rise to other related violations, and is particularly serious when it is framed within a
systematic pattern or practice applied or tolerated by the State.44
60. The characterization of forced disappearance as multiply offensive and continuing or
permanent is reflected in the jurisprudence of this Tribunal45 and can be inferred not only
from the definition of Article II of the Inter-American Convention on Forced Disappearance,46
to which the Bolivian state is party (supra para. 19), its travaux préparatoires,47 its preamble
and regulation,48 but also from other definitions included in different international
instruments49 that similarly mention the following as concurring and constitutive elements
of forced disappearance: a) the deprivation of liberty; b) the direct intervention of state
agents or their acquiescence; and c) the refusal to acknowledge the detention and reveal
the fate or whereabouts of the affected person.50 On previous occasions, this Tribunal has
mentioned that, additionally, the jurisprudence of the European Human Rights System,51 the
decisions of different bodies of the United Nations52 and several Constitutional Courts and
high national courts of the American States53 agree with the indicated characterization.54
44
Cf. Case of Anzualdo Castro v. Perú. Preliminary Objection, Merits, Reparations and Costs. Judgment of
September 22, 2009. Series C No. 202, para. 59, and Case of Radilla Pacheco v. Mexico, supra note 8, para.
139.
45
Cfr. Case of Velásquez Rodríguez v. Honduras. Merits, supra note 14, para. 155; Case of Radilla Pacheco
v. Mexico, supra note 8, paras. 23, 138, 140, 145 and 146, and Case of Chitay Nech et al. v. Guatemala, supra
note 6, paras. 81 and 87.
46
In its pertinent part, said article provides 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.”
47
Cf. Annual Report of the Inter-American Commission on Human Rights 1987-1988, Chapter V.II. This
crime “is permanent since it is perpetrated not instantly but permanently and it extends during the time that the
person remains disappeared” (OEA/CP-CAJP, Report of the President of the Working Froup in charge of analizing
the Project of IACFDP, doc. OEA/Ser.G/CP/CAJP-925/93 rev.1, of 25.01(1)1(1)1(1)994, p. 10).
48
Article III of the Inter-American Convention on Forced Disappearance of Persons states that “[t]his
offense shall be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been
determined.” Likewise, the preamble establishes 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.”
49
Cf. United Nations Economic and Social Council, Report of the Working Group on Forced or Involuntary
Disappearance of Persons, General Observation to Article 4 of the Declaration on the Protection of all Persons
from Enforced Disappearance of January 15, 1996. (E/CN. 4/1996/38), para. 55; article 2 of the International
Convention
on
the
Protection
of
all
Persons
from
Enforced
Disappearance,
UN
Document
E/CN.4/2005/WG.22/WP.1/REV.4, September 23, 2005, and article 7, number 2, subsection i) of the Rome
Statute of the International Criminal Court (Rome Statue), UN Document A/CONF.183/9, July 17, 1998.
50
Cf. Case of Gómez Palomino v. Peru, Merits, Reparations and Costs. Judgment of November 22, 2005.
Series C No. 136, para. 97; Case of Radilla Pacheco v. Mexico, supra note 8, para. 140, and Case of Chitay Nech
et al. v. Guatemala, supra note 6, para. 85.
51
Cf. Eur. Ct. H.R., Case of Kurt v. Turkey, 15/1997/799/1002, May 25, 1998, paras. 124 to 128; Case of
Çakici v. Turkey, Application no. 23657/94, July, 8 1999, paras. 104 to 106; Case of Timurtas v. Turkey,
Application no. 23531/94, June, 13 2000, paras. 102 to 105; Case of Tas v. Turkey, Application no. 24396/94,
November 14, 2000, paras. 84 to 87; Case of Cyprus v. Turkey, Application no. 25781/94, May 10, 2001, paras.
132 to 134 and 147 to 148.
52
Cf. United Nations Human Rights Committee, Case of Ivan Somers v. Hungría, Communication No.
566/1993, 57th period of sessions, CCPR/C/57/D/566/1993 (1996), July, 23 1996, para. 6.3; Case of E. y A.K. v.