CASE OF NÚÑEZ NARANJO ET AL. V. ECUADOR
CONCURRING OPINION
Judge Verónica Gómez and Judge Rodrigo Mudrovitsch
I.
INTRODUCTION
1.
The judgement of the Court herein analyzes the international
responsibility of the Ecuadorian State for violations of the American Convention
on Human Rights due to the enforced disappearance and lack of investigation into
the whereabouts of Mr. Fredy Núñez Naranjo, the physical assaults suffered by his
relatives, Ms. María Gregoria Naranjo and Marcia Núñez Naranjo, and their lack of
effective judicial investigation. 1 The majority opinion reaffirms the protection
parameters consolidated in the inter-American case law framework regarding
enforced disappearance and provides contributions regarding the consideration of
"force majeure" in establishing state obligations.
2.
While the judgment declares the Ecuadorian State responsible for the
enforced disappearance of Mr. Fredy Núñez Naranjo and the damages caused to
his family, the court fails to rule on the legal consequences of the possible
authorization, support, or acquiescence of the State in relation to the actions of
non-state actors operating under its jurisdiction. The analysis of the case starts
from the premise that the international responsibility for the enforced
disappearance of the victim is mainly attributable to the State due to the failure
of its role as guarantor during the period in which Fredy Núñez Naranjo remained
detained in the Quero Canton Police Station. This finding is framed within the
factual framework of the case and it is in this context that we support the
conclusions of the judgment and the measures of reparation for the harm caused
to the victims of the particular case. However, in accordance with Article 66(2) of
the American Convention on Human Rights, it is appropriate to express our
respectful dissent in argumentative terms, in the face of the majority's decision
not to delve deeper into the analysis of state responsibility for tolerance towards
the actions of non-state actors within their jurisdiction.
3.
Given the above, the first section of this concurring opinion explains
why the absence of an analysis on state responsibility for acts of individuals affects
the integrity of the judgment's reasoning, and the second section provides
standards of international human rights law that should have been considered in
the Court's reasoning.
II. FAILURE TO ADDRESS STATE RESPONSIBILITY IN THE MAJORITY
JUDGMENT
4.
According to the judgment, on July 15, 2001, Fredy Núñez Naranjo
was detained by police officers from the Quero Canton Police Station after a fight
with OM and OF, members of the Puñachizag and Shaushi communities, which are
Cf. Case of Núñez Naranjo et al. v. Ecuador. Merits, Reparations, and Costs. Judgment of May 23,
2023. Series C No. 492, para. 32.
1