45
144. For an investigation to be effective, the States must establish an adequate regulatory
framework in order to develop the investigation, which implies regulating the forced
disappearance of persons as an autonomous crime in their domestic legislations, since
criminal prosecution is an adequate instrument for preventing future violations of human
rights135 (infra paras. 317 through 318)
145. From all the aforementioned, it can be concluded that the acts that constitute a forced
disappearance have a permanent nature and that their consequences imply multiple offenses to
the rights of people acknowledged in the American Convention while the whereabouts of the
victim are not known or their remains have not been located; therefore, the States have the
corrollary duty to investigate it and, eventually, punish those responsible, pursuant with the
obligations derived from the American Convention, and specifically, from the Inter-American
Convention on Forced Disappearance of Persons.
146. In that sense, the analysis of forced disappearance shall include the totality of the facts
presented for the Tribunal’s consideration in the present case.”136 Only then will the legal
analysis of the forced disappearance be in accordance with the complex violations of human
rights it entails,137 with its continued or permanent nature, and with the need to consider the
context in which the facts occurred, in order to analyze its prolonged effects in time and focus
comprehensively on its consequences,138 taking into consideration the corpus juris of
protection, both Inter-American and international.
C.1
Rights to personal freedom, to humane treatment, life, and to the acknowledgment of
juridical personality
147. The Commission argued, in separate sections, that the State was responsible for
having illegally deprived Mr. Radilla-Pacheco of his freedom, and of not having taken him
before a competent judge. Likewise, it stated that said detention had occurred “[w]ithin a
context of arrests and tortures of detainees,” that there were serious indicia that Mr.
Radilla-Pacheco had been submitted to tortures, and that the State had not carried out a
serious and objective investigation of those facts. It added that since “[3]3 years” had gone
by “since the date of his arrest, without any news on his whereabouts […] there [were]
sufficient elements of conviction to consider that [Mr.] Rosendo Radilla-Pacheco lost his life
in the hands of members of the Mexican army.” It also indicated that the State had failed to
comply with its obligation to guarantee the right to life of Mr. Rosendo Radilla-Pacheco
through a serious, diligent, and impartial investigation, and that the ones it had started had
“[s]hown delays and lack of effectiveness.” Finally, the Commission argued that the forced
disappearance generated a violation of the acknowledgment of the alleged victim’s juridical
personality, since the precise objective of forced disappearance is to extract the individual
from the protection due to them, with the clear and deliberate intention of eliminating the
135
Cf. Case of Gómez Palomino v. Peru, supra note 51, paras. 96 and 97; Case of Heliodoro Portugal v.
Panama, supra note 24, paras. 188 and 189, and Case of Anzualdo Castro v. Peru, supra note 44, para. 66.
136
Cf. Case of Heliodoro Portugal v. Panama, supra note 24, para. 112, and Case of Ticona Estrada v. Bolivia,
supra note 23, para. 56, and Case of Anzualdo Castro v. Peru, supra note 44, para. 67.
137
Cf. Case of Velásquez Rodríguez v. Honduras, supra note 24, para. 185; Case of Ticona Estrada v. Bolivia,
supra note 23, para. 70, and Case of Anzualdo Castro v. Peru, supra note 44, para. 67.
138
Cf. Case of Goiburú et al. v. Paraguay, supra note 83, para. 85, and Case of Anzualdo Castro v. Peru,
supra note 44, para. 67.
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