64
results have not been significant in the investigations initially carried out by the then Special
Prosecutors’ Office […].”217
212. Based on the aforementioned, the Court considers that, even though several
diligences have been carried out, the investigation carried out by the State has not been
done with due diligence, thus guaranteeing the reestablishment of the rights of the victims
and avoiding impunity. The Tribunal has defined impunity as “the lack of a complete
investigation, persecution, capture, prosecution, and conviction of those responsible for the
violations of the rights protected by the American Convention.”218 In cases of forced
disappearance of persons, impunity must be eradicated through the determination of
responsibilities, both general –of the State- and individual –criminal and of any other nature
of its agents or individuals -.219 In compliance with this obligation, the State shall remove all
the obstacles, de facto and de jure, that maintain impunity.220
213. Additionally, in the present case the commitments assumed by the State since the
creation of the Special Prosecutors’ Office have not been fulfilled. After almost three years
since the General Investigation Coordination assumed the investigations again, the State has
also failed to prove the existence of a renewed commitment with the determination of the
truth taking into consideration the victims’ dignity and the seriousness of the facts.
214.
In that sense, it does not escape the Tribunal that 35 years after Mr. Rosendo
Radilla-Pacheco was detained and disappeared, and 17 years after the first criminal
accusation in this regard was formally filed (supra para. 183), there has not been a serious
investigation leading to both determine his whereabouts and to identify, prosecute and, if it
were the case, punish those responsible for those facts
215. It is appropriate to remember that in cases of forced disappearance, the prompt and
immediate action of physical and judicial authorities through the order of the timely and
necessary measures addressed to the determination of the whereabouts of the victim is
essential.221 Likewise, the Court reiterates that the passing of time holds a direct
proportional relationship with the limitation –and in some cases, the impossibility-to obtain
the evidence and/or testimonies, making the execution of evidentiary diligences with the
objective of clarifying the facts object of investigation,222 the identification of the possible
authors and participants, and the determination of the possible criminal responsibilities
difficult or even null or ineffective. Without detriment of the aforementioned, the national
217
Said Commission has also stated that this “[h]as resulted in a constantly growing number of people,
mainly next of kin of the victims of the crime, stating their non-conformity toward the Public Prosecturs’ Office,
which […] has not offered them a satisfactory response to their demands to effectively exercise their right to a fair
trial […].” Cf. Report on the Evaluation of the Following of Recommendation 26/2001, National Human Rights
Commission, of August 25, 2009 (dossier of merits, volume IX, folios 3016 through 3017).
218
Cf. Case of the “White Van” (Paniagua Morales et al.) v. Guatemala. Merits, supra note 43, para. 173;
Case of the Miguel Castro Castro Prison v. Peru, supra note 51, para. 405, and Case of Tiu Tojín v. Guatemala,
supra note 24, para. 69.
219
Cf. Case of Goiburú et al. v. Paraguay, supra note 83, para. 131; Case of Perozo et al. v. Venezuela, supra
note 56, para. 298, and Case of Anzualdo Castro v. Peru, supra note 44, para. 125.
220
Cf. Case of La Cantuta v. Peru, supra note 51, para. 226; Case of Kawas Fernández v. Honduras, supra
note 40, para. 192, and Case of Anzualdo Castro v. Peru, supra note 44, para. 125.
221
Cf. Case of Anzualdo Castro v. Peru, supra note 44, para. 134.
222
Cf. Case of Heliodoro Portugal v. Panama, supra note 24, para. 150; Case of Perozo et al. v. Venezuela,
supra note 56, para. 319; and Case of Anzualdo Castro v. Peru, supra note 44, para. 135.
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