[…]
This offense shall be deemed continuous or permanent as long as the fate or whereabouts of
the victim has not been determined.
94.
In international law, the jurisprudence of this Tribunal has been at the vanguard
of the consolidation of a comprehensive understanding of the seriousness and
continuous or permanent nature of the enforced disappearance of persons, in which the
act of disappearance and its execution start with depriving the person of liberty and
continue with the lack of information on that person’s location. The enforced
disappearance is ongoing for as long as the whereabouts of the disappeared person are
not known and the person’s identity has not been determined with certainty. In keeping
with all this, the Court has reiterated that enforced disappearance constitutes a multifaceted violation of several rights protected by the American Convention that places the
victim in a state of complete defenselessness, leading to other related violations.70
95.
The characterization of enforced disappearance as a multi-offensive and
continuous or permanent offense, as expressed in the jurisprudence of this Tribunal, 71 is
derived not only from its definition in Article II of the Inter-American Convention on Forced
Disappearance of Persons, its travaux préparatoires,72 its preamble, and its provisions,73
but also two other definitions contained in different international instruments 74 that,
likewise, indicate the following as concurrent elements constituting enforced
disappearance: a) the deprivation of liberty; b) the direct involvement of State agents or
their acquiescence; and c) the refusal to recognize the detention and reveal the fate or
whereabouts of the person in question. 75 On previous opportunities, this Tribunal has
also indicated that the jurisprudence of the European Human Rights System, 76 the rulings
70
Cf. Case of Anzualdo Castro V. Perú. Preliminary Objection, Merits, Reparations and Costs. Judgment
of September 22, 2009. Series C No. 202, para. 59; Case of Ibsen Cárdenas and Ibsen Peña V. Bolivia, supra
note 14, para. 59, and Case of Gomes Lund et al. (Guerrilha do Araguaia) V. Brazil, supra note 70, para. 103.
71
Cf. Case of Velásquez Rodríguez V. Honduras, supra note 21, para. 155; Case of Ibsen Cárdenas and
Ibsen Peña V. Bolivia, supra note 14, para. 60, and Case of Gomes Lund et al. (Guerrilha do Araguaia) V.
Brazil, supra note 70, para. 104.
72
Cf. Annual Report of the Inter-American Commission on Human Rights 1987-1988, Chapter V.II. This
crime "is permanent in the sense that it is not consummated instantaneously but rather permanently and extends
throughout the time in which the individual remains disappeared” (OEA/CP-CAJP, Report of the President of the
Working Group in Charge of Analyzing the IACFDP Project, doc. OEA/Ser.G/CP/CAJP-925/93 rev.1, dated
01.25.1994, p. 10).
73
The preamble of the Convention on Forced Disappearance establishes that “that the forced disappearance
of persons violates numerous non-derogable and essential human rights enshrined in the American Convention on
Human Rights, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of
Human Rights.”
74
Cf. Economic and Social Council of the United Nations, Working Group on Enforced and Involuntary
Disappearance of Persons, General Comment to 4 of the Declaration on the Protection of All Persons from
Enforced Disappearance of January 15, 1996. (E/CN. 4/1996/38), para. 55; 2 of the International Convention
for the Protection of All Persons from Enforced Disappearance, Document of the United Nations
E/CN.4/2005/WG.22/WP.1/REV.4, 23 of September of 2005, and 7, numeral 2, section i) of the Rome Statute
of the International Criminal Court, Document of the United Nations A/CONF.183/9, July 17, 1998.
75
Cf. Case of Gómez Palomino V. Perú. Merits, Reparations and Costs. Judgment of November 22, 2005.
Series C No. 136, para. 97; Case of Gomes Lund et al. (Guerrilha do Araguaia) V. Brazil, supra note 70, para.
104, and Case of Gelman V. Uruguay. Merits and Reparations. Judgment of February 24, 2011. Series C No.
221, para. 65.
76
In this regard, the following cases can be seen regarding enforced disappearance of persons: E.C.H.R.
Case of Kurt V. Turquía. Judgment of May 25, 1998, paras. 124 to 128; Case of Çakici V. Turquía. Judgment of
July 8, 1999, paras. 104 to 106; Case of Timurtas V. Turquía. Judgment of June 13, 2000, paras. 102 to 105;
Case of Tas V. Turquía. Judgment of November 14, 2000, paras. 84 to 87, and Case of Chipre V. Turquía.
Judgment of May 10, 2001, paras. 132 to 134 and 147 to 148.
29