106. The representatives indicated that the lack of a prompt investigation by the State in
order to discover the reasons for the abduction, identify those responsible, and prosecute
them promptly so as to sentence and convict them, exposed his next of kin to a situation of
anguish and despair, not only because of the disappearance of their relative, but also
because they were obliged to incur financial expenses and travel to different places. This
necessarily led them to change their way of living, which only added to the non-pecuniary
damage and affected their social relations. The representatives concluded that the violation
of the right to personal integrity of Marco Bienvenido Palma Mendoza’s family is evident
because of the consequences suffered as a result of the facts of the case and their search to
obtain justice.
107.
The State defined the situation of Mr. Palma’s next of kin as:
A complex and painful situation, but not because of the lack of action in the investigation of the
case, [which] was conducted in an extremely dangerous context in the coastal provinces of
Ecuador, but because private agents (who had no connection whatsoever with the State) were able
to exercise pressure and intimidate the family which, evidently, should have reported these acts.
108. In addition, the State indicated that, in order to analyze the alleged violation, the
following aspects, among others, should be taken into account: (a) that the alleged violation
of the physical or moral integrity was not increased by the stigmatization or denigration,
because the courts, the police, and the civil authorities provided support to clarify the
events; (b) a careful examination of the discontinuance procedure in the proceedings by the
next of kin, in order to assess the pertinence of considering them direct victims; (c) that the
timetable of the events related to Mr. Palma’s disappearance provided by the representatives
does not imply the involvement of State agents; (d) that Mr. Palma’s remains were
recovered, the exhumation was conducted, and the remains were returned to his next of kin;
(e) that, as a result of a regional operation, it was possible to obtain the testimony of an
individual (with no ties whatsoever to the State) who recounted what happened to Mr.
Palma, and (f) that, while it is likely that some of the suffering experienced by Mr. Palma’s
next of kin is similar to that of the relatives of victims in other cases submitted to the Court
based on forced disappearance, their origin is very different as regards the international
responsibility of the State in the instant case. Lastly, the State indicated that, in this case,
there was no enforced disappearance and none of the characteristics elements of this crime
occurred; rather, to the contrary, a serious and thus ongoing investigation was opened,
based on the complaint that was filed and the applications for habeas corpus, criminal
proceedings were undertaken, and those responsible were punished. In conclusion, Ecuador
indicated that it has been proved that it did not violate Article 5 of the Convention, because it
was not State agents who intervened in the unfortunate events of the instant case.
Considerations of the Court
109. The Court finds that the State has not incurred responsibility in relation to the alleged
violation of the right to personal integrity established in Article 5 of the American
Convention, since it has concluded that a violation of the rights to judicial guarantees and
protection has not been established.
X
OPERATIVE PARAGRAPHS
110.
Therefore,
33
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