SEPARATE OPINION OF JUDGE SERGIO GARCÍA RAMÍREZ IN RELATION TO THE JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS OF AUGUST 12, 2008, IN THE CASE OF HELIODORO-PORTUGAL (PANAMA) 1. I concurred with the adoption of the judgment delivered in this case, which declared that the facts that were subject to the temporal and material jurisdiction of the InterAmerican Court violated human rights. Nevertheless, I consider it pertinent to make some additional observations on the principal fact sub judice, the forced disappearance of Mr. Portugal. This is the fact to which the Court paid most attention, because another extremely serious fact – the deprivation of life by extrajudicial execution – was outside its jurisdiction ratione temporis, taking into account the date on which it probably occurred and the date on which the State accepted the Court’s compulsory jurisdiction. 2. The frequency and relevance of the cases of forced disappearance submitted to the Court’s consideration should be emphasized once again. The Court commenced the exercise of its contentious jurisdiction several decades ago by hearing such cases. At that time, the 1994 Inter-American Convention on Forced Disappearance of Persons did not exist (nor did the Inter-American Convention to Prevent and Punish Torture). Consequently, the Court had to elaborate its own concepts in this regard, which would pave the way to the subsequent thinking within the inter-American human rights system. The development of these concepts by the Court in unique decisions – particularly, the well-respected judgment in the Velásquez Rodríguez (Honduras) case – established the continuing (or continuous) nature of this violation, involving multiple offenses, and this has had significant consequences for the jurisdictional exercise. 3. In these pioneering decisions, widely-known and often cited in America and in Europe, the Court expressed its most energetic condemnation of the forced disappearances that State agents – organized by “high spheres of power” or acting on their own initiative – have used to repress groups or individuals they classify as enemies of the established order and, therefore, targets of extraordinarily serious acts and omissions. This is just one more example of a deplorable manifestation of certain concepts of public reaction against “enemies” selected by the political powers for intimidation and punishment. 4. In view of the fact that, nowadays, we have an inter-American instrument on forced disappearance (in contrast to before 1994), we can and must use the definition that this document provides. It includes the generally-recognized elements of this unlawful conduct. Let us recall the words of Article II: “For the purposes of this Convention, 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.” 5. I am not forgetting that this precept starts out by stating: “For the purposes of this Convention” (which was also directly applied by the Court in the case which occupies my attention at this time), and I will not take into account the possibility – which has not been referred to and examined – that there could be another concept of forced disappearance for different purposes than those of the 1994 Convention and, in brief, of the inter-American corpus juris in accordance with which the Court exercises its material jurisdiction. Evidently, I am not saying that it is impossible or undesirable to reformulate this definition. I am merely noting that, currently, the Inter-American Court’s examination of cases is based on it, and this is how the Court interprets the American Convention on Human Rights itself, when pertinent.

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