37
caused damage to her physical and psychological suffering, and contributed to her
feelings of serious anguish, desperation, and fear she experienced by living with her
daughter in a clandestine detention center, where one normally could hear the
torture inflicted on the other prisoners in SID111 and not knowing the fate of her
daughter when they were separated, 112 as well as being unable to foresee her final
fate. All this constitutes an affectation of such magnitude that it should be qualified
as the most serious form of violation of her psychological integrity.
99.
This enforced disappearance constitutes, due to the nature of the injured
rights, a violation of a jus cogens principle, especially serious because it occurred in
the context of a systematic practice of “State-sponsored terrorism,” at an inter-state
level. 113
100. The preparation and execution of the arrest and subsequent disappearance of
María Claudia García could not have been perpetrated without the knowledge or
higher orders of the military, police, and intelligence headquarters at the time, or
without the collaboration, acquiescence, or tolerance, manifested in various actions,
carried out in a coordinated or concatenated manner, by members of the security
forces and intelligence services (and even diplomats) of the States involved, wherein
State agents not only grossly failed in the obligations to prevent and protect against
violations of the rights of the alleged victims, enshrined in Articles 1(1) of the
American Convention, but also used the official investiture and resources provided by
the State to commit the violations.
101. In consideration of the preceding, in relation with the enforced disappearance
that continues to this date, the Court finds that the State is responsible for the
violation of the personal liberty, to the personal integrity, to the right to juridical
personality, and to life of María Claudia García Iruretagoyena de Gelman, recognized
in Articles 7(1); 5(1) and 5(2); 3 and 4(1), given the failure to comply with the
obligation to respect and guarantee rights, established in Article 1(1) of the
American Convention, in relation with Articles I and XI of the Inter-American
Convention on the Forced Disappearance of Persons.114
VI.2
RIGHT TO JURIDICAL PERSONALITY, RIGHTS OF THE CHILD, PROTECTION
OF THE FAMILY, RIGHT TO A NAME, RIGHT TO NATIONALITY, AND RIGHT TO
HUMANE TREATMENT [PERSONAL INTEGRITY] OF MARÍA MACARENA
GELMAN GARCÍA IRURETAGOYENA, AND TO RIGHT TO HUMANE TREATMENT
111
Testimony of Sara Méndez. Rendered by Juan Gelman during the public hearing.
112
Cf., mutatis mutandi, Case of del Penal Miguel Castro Castro V. Perú. Merits, Reparations and
Costs. Judgment of November 25, 2006. Series C No. 160, para. 103.
113
As such, it may be classified as a crime against humanity.
114
In various cases, the Court has analyzed, or declared the violation, of the provisions mentione din
the Inter-American Convention on Forced Disappearance. In this regard, see the following cases: Case of
Blanco Romero et al. V. Venezuela, arts. I, X and XI; Case of Heliodoro Portugal V. Panamá. arts. I and II;
Case of Tiu Tojín V. Guatemala, art. I; Case of Ticona Estrada V. Bolivia, arts. I, III and XI; Case of
Anzualdo Castro V. Perú, arts. I and II; Case of Radilla Pacheco V. México, arts. I and II; Case of Ibsen
Cárdenas V. Bolivia, arts. I and XI; and Case of Chitay Nech et al. V. Guatemala.
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