46
possibility that the person file legal actions, excluding them from the legal and institutional
system.
148. The representatives coincided with the arguments presented by the Commission.
Additionally, they asked the Court to declare the violation of Article 7 of the Convention, in
relation with Articles II and XI of the CIDFP. In this regard, we shall reiterate that this
Tribunal has established that the alleged victim, his next of kin, or his representatives may
invoke rights different to those included in the Commission’s application, based on the facts
presented by the latter.139 On the other hand, the Court observes that the representatives
did not argue the violation to the right to the acknowledgment of juridical personality,
established in Article 3 of the American Convention.
149. The State, on its part, acknowledged its international responsibility for the violation
of the rights acknowledged in Articles 5 and 7 of the American Convention, in detriment of
Mr. Radilla-Pacheco (supra para. 52). In this sense, it acknowledged that a public official
had illegally and arbitrarily deprived Mr. Radilla-Pacheco of his freedom. Likewise, the State
indicated that it is reasonable to presume his death (supra para. 53). Additionally, it stated
that, pursuant with that established by this Court in its decisions, when “[t]he
disappearance of the victim is argued a sentence shall not be issued for violations to the
right to juridical personality, since that right has its own juridical content.”
150. The Tribunal considers as sufficiently proven the fact that Mr. Rosendo RadillaPacheco was arrested by Army soldiers, at a military checkpoint located at the entrance of
the Colony of Cuauhtémoc, in Atoyac de Álvarez, Guerrero, on August 25, 1974, and
subsequently transferred to the Military Barracks of Atoyac de Álvarez. He was kept there in
a clandestine manner for several weeks, where he was seen the last time, with his eyes
blindfolded and signs of physical beatings. More than 35 years after his arrest, the next of
kin of Mr. Radilla-Pacheco still do not know his whereabouts, despite the steps taken. The
authorities continue to deny the whereabouts of the victim, since up to this date they have
not offered a clear response regarding his fate.
151. The pattern of the arrests made in those years leads to the conclusion that Mr.
Rosendo Radilla-Pacheco was arrested for being considered a supporter of the guerrilla.
Arrests like these were made without a warrant issued by a competent authority and in a
clandestine manner, seeking to extract the individual from the protection of the law, in
order to break their personality and obtain confessions or information on the insurgence
(supra para. 136). In this sense the National Human Rights Commission stated that a
document located in the files of the currently extinct Federal Safety Office of Mexico refers
to the then prevailing situation in the area corresponding to the Sierra of Atoyac de Álvarez,
Guerrero, mainly, to the actions of the organization known as the “Party of the Poor”. Said
document mentions that even though the “[h]abitants of the region” did not participate in
the actions of this “clandestine” group, they did not denounce them either due to fear of
that organization, which means that it had “[t]he support and the liking of the habitants of
the Area.” Specifically, according to that indicated by the National Commission, said
document states that:
In order to be able to thwart the activities carried out by this group, within urban and rural means,
it [was] necessary to employ the same techniques as them, using banging forces that act in a
139
Cf. Case of the "Five Pensioners" v. Peru. Merits, Reparations, and Costs. Judgment of February 28, 2003.
Series C No. 98, para. 155; Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of
the Comptroller”) v. Peru. Preliminary Objection, Merits, Reparations, and Costs. Judgment of July 1, 2009 Series
C No. 198, para. 97, and Case of Escher et al. Brazil, supra note 64, para. 191.
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